2009
Magazine Section
List
EDUCATIONAL VISIT TO THE COMMONWEALTH JUDICIAL EDUCATION INSTITUTE, HALIFAX, CANADA (8-28 JUNE, 2008)
JUDICIAL ACTIVISM AND SUO MOTO
STANDING TO SEEK JUDICIAL REVIEW
LEGAL
IMPLICATIONS OF TRADITIONAL AND ISLAMIC BANKING
BRIDGING THE GAP BETWEEN CITIZENS AND THEIR COURTS
WHEN CONSTITUTION IS INEFFECTIVE
HUDOOD ORDINANCE AND GENDER
DISCRIMINATION IN
PERSONAL INJURY AND LIABILITY
OF A CARRIER
FLAWS IN
KHULA: THE GREAT CONTROVERSY
INTERNATIONAL PROTECTION OF RELIGIOUS
FREEDOM: IMPLEMENTATION IN
COVENANT
IMPOSING TAZIR ON PRONOUNCING DIVORCE VOID
CONSTITUTIONAL REMEDYS AND
EXHAUSTION DOCTRINE
ENVIRONMENTAL HUMAN RIGHTS
GREEN LAWS IN PUBLIC INTEREST LITIGATION
PUBLIC INTEREST LITIGATION IN ENVIRONMENTAL MATTERS
FATA: CHALLENGES AND RESPONSES
SOVEREIGNTY OR
HUMANITARIAN INTERVENTION: THE DECISIVE DECISION
PRINCIPLES UNDERLYING WRIT JURISDICTION
HUDOOD ORDINANCE AND GENDER DISCRIMINATION IN
DISTRICT JUDICIARY: TRUE
PERSPECTIVE
TRADED
REMEDY LAWS OF
PRINCIPLES OF POLICY OF CONSTITUTION
OF 1973 AND THEIR OBSERVANCE
JUSTICE DELAYED - JUSTICE DENIED
RIGHT TO HOLD PERMANENT EMPLOYMENT IN
-------------------------
Some Observations and Suggestions
By
MUHAMMAD AMIR MUNIR, Fellow CJEI
(Civil Judge 1st Class / Magistrate s.30)
Additional Director (Academics)
The Commonwealth Judicial Education
Institute (CJEI) annually organizes a three week Intensive Study Program (ISP)
for Judicial Educators from around the Commonwealth countries. For their
program scheduled for 8-28 June, 2008, Hon’ble Chief Justice of Pakistan
nominated two hon’ble judges from superior courts, i.e., Mr. Justice M. Javed
Buttar, Judge Supreme Court and Mrs. Justice Qaiser Iqbal, Judge, High Court of
Sindh; while I was nominated to represent the
Hon’ble Sir Dennis Byron, President of
International Criminal Tribunal for Rawanda (ICTR) is President of the CJEI.
Likewise, a former Canadian Judge, Hon’ble Sandra E. Oxner is Chairperson of
the Institute. Further details about the Institute and its workings can be read
at www.cjei.org.
It is housed in
The study program was designed not only to
cater the academic needs of the participants, but it was full of other
recreational activities like yoga sessions and visits to different parts of
cities. The first two weeks were in
The study also included visits to the
National Judicial Institute that caters the need of training and education of
Canadian judiciary; Canadian Judicial Council that hears complaints about
judges and perform the role to recommend the names of fit persons to be
appointed to different judicial offices and Office of the Federal Judicial
Affairs that is generally meant for playing the role of a bridge and buffer
zone between the executive and legislative branches of government. A visit and
a session on alternative dispute resolution methods used in
The participants of ISP also visited the
Ontario Court of Justice in
In the first two weeks of the ISP, the
participants of the program received training on different issues that relate
to the core area of judicial education and training. The international best
practices on judicial education were discussed and techniques were told. It was
also discussed in different sessions that how a judicial academy is to be
organized and how its curriculum can be defined. Sessions were also arranged on
training of trainers and different teaching tools that are required to run a
judicial education/training institute in a most modern way. The foremost among
them were: adult education principles; presentation techniques; communication
skills; program designing for judicial education and training programs;
preparation of calendars for judicial training programs including short and
long term programs; use of modern technology for judicial education; session on
use of power-point; judicial training and education through use of audio/video
and internet.
The
first judicial training institute in
It
shows that the concept of judicial education and training has firmly
established not only at federal level, but even at the provincial levels. We
have now six institutions in
The
Chairperson of CJEI, Judge Sandra Oxner has been visiting
In
total, the ISP of the CJEI is an effective training program for judicial
educators where they learn how to impart judicial education and how to run
judicial training institutes and programs. I would suggest to the
directors-general of all our judicial academies that every year some of the
funds must be allocated for training of trainers program for judicial educators
/ faculty members of the academies so that the academies may remain relevant
and uptodate on judicial education needs of the society. For any further information about CJEI or its
programs, author may be contacted at amir.munir@fja.gov.pk.
-------------------------------
JUDICIAL ACTIVISM AND SUO MOTO
By:
JAVWAD TARIQ NASIM
(Advocate High Court)
(L.L.B Honours,
(L.L.M in International and Commercial Law,
Judicial Activism:
The concept
of judicial activism was created and introduced by "Arthur Schlesinger
Jr." (an American historian and social critic) to the public in a Fortune
magazine article in January 1947.[1]
For an
informal definition one can phrase out Judicial Activism as being the process
or concept in a judicial system that justifies making decisions which are
contrary to established precedents and laws, whether statutory or constitutional.
Such decisions are applauded by the general public rather than juristic
philosophers and writers.
Numerous
legal and non-legal sources have attempted to define the word and have done so
successfully in various different expressions. Some of the good sources need to
be quoted here as follows:
"A
philosophy of judicial decision-making whereby judges allow their personal
views about public policy, among other factors, to guide their decisions, usu.
with the suggestion that adherents of this philosophy tend to find
constitutional violations and are willing to ignore precedent."[2]
The term
"Judicial activism" is different from the term "An Activist
judge" and should not be confused to mean the same because the former
relates to the definitions and concepts defined above while the latter may be
referring to a judge who has not literally overturned an established rule or
principle but has just given an important judgement/decision on an important
law point. Important decisions on points of law even though not in conflict
with established laws will be an activist decision by an activist judge.
Thereby meaning that the progress of the judiciary is also linked to the term
"activism".
The concept
of judicial activism especially to laymen is more of a "protector of
individual rights" rather than a concept of "restraining
constituional violations even if it involves ignoring precedents" even
though both concepts are one of a kind when it comes to their effect in their
application.
The Debate - Arguing For and Against Judicial Activism:
It is
difficult to say whether the concept of judicial activism has made more critics
of itself or supporters but in the view of its critics of `the application of
the concept usurps power of the legislature, thereby diminishing the rule of
law and democracy'. The main objection with the concept is that in the view of
its critics, the Courts (Judiciary) are established to rule upon (uphold) the
rules and legislation drafted by the legislature and not to check the validity
of the legislation. The duly elected participants/members of the parliament
have the sole authority to make laws and the courts are only a forum that would
interpret them and decide whether someone is following it or deviating from it.
The supporters of the concept of "separation of powers" also argue
along the same line by arguing that the three organs of the state i.e. the
Legislature, the Executives and the Judiciary should operate individually and
independently rather than stepping onto the jurisdiction of the other organs of
the state.
However on
the other hand the people who have defended judicial activism argue that it is
the duty of the court and the court should take upon itself to guarantee the
rights of individuals against the powerful hands of the few powerful people in
the society. Laws that are inconsistent with fundamental rights should be
declared to be void with no effect no matter how much loss the legislature has
borne in introducing that illegal law. It is the view of the supporters of the
concept that it is also the job of the courts to uphold the rights of the
minority no matter what political pressures the court faces in making that
decision. The country has to be "socially equal" in everyway to
achieve full democracy. It cannot make double standards as to its own policy
making and the courts should be there to watch that such double standards have
not arisen between the general public and the government.
Another
critic of the concept is the present Chief Justice of America, John Roberts who
has condemned the concept of `judicial activism' in the following words;
"Judges
are like umpires. Umpires don't make the rules; they apply them. The role of an
umpire and a judge is critical. They make sure everybody plays by the rules.
But it is a limited role. Nobody ever went to a ballgame to see the
umpire."
Furthermore
the Chief Justice has stated that `the courts are not under a commission or
mission to solve the society's problems'. The courts in his view are only the
adjudicators upon fact and law and they should responsibly do only the duty of
interpreting law.
An example
of a U.S case that involved important judicial activism is quoted as follows:
Dred Scott vs. Sandford[3]
This case
also known as the "Dred Scott Decision", was a lawsuit, pivotal in
the history of the United States, decided by the United States Supreme Court in
1857 that ruled that people of African descent, whether or not they were
slaves, could never be citizens of the United States, and that Congress had no
authority to prohibit slavery in federal territories. The decision for the
court was written by the then Chief Justice of Amercia, Roger Taney. The
implications of the decision are not under discussion because the important
point to note here is that the Court took upon itself to lay down the law as
opposed to interpreting it which is the primary duty of the Judiciary.
Judicial Activism in
Judicial
activism in
One of the
various modes in which judicial activism is practiced or is entrusted upon the
courts to practice is through the concept of "Public Interest
Litigation" (hereinafter referred to as "PLI"). The main
appellate Court which is the court of last resort is the Supreme Court of
Pakistan. The Supreme Court has been involved in historical problems which have
frequently changed the level of judicial activism in Pakistan but the soaring
level at which it has been for the past few years has never been witnessed
before.
Pakistani
courts have been involved in judicial activism since a long time back and one
of the examples of such activism can be witnessed from the 1988, Saifullah's
case. Despite the strong pressure by the executives, it was made mandatory that
elections would be held on party basis. Later, the Lahore High Court and the
Supreme Court both declared that the government of "Junejo" was
dissolved unconstitutionally. The matter came down to an interpretation of
Article 17 of the Constitution and by taking a very dynamic interpretation of
Article 17 of the Constitution, the Nawaz Sharif government was restored in
1993. Had the Supreme Court interpreted the article literally, the case should
have been heard by a High Court at first instance.
Therefore it
is evident that the Pakistani courts have been involved in judicial activism
since a long time back whether it is activism in relation to political affairs
or activism for the protection of individual rights and the upholding of the
rule of law.
The recent
example of the "clash" between the Chief Justice of Pakistan, Iftikhar
Muhammad Chaudhry and the President of Pakistan, can be attributed to Judicial
Activism in
Suo Moto:
The concept
of suo moto (in the context of Pakistan) can be defined as an inherent right of
the Supreme Court and High Court of Pakistan to take cognizance of any
act/omission of any public functionary in order to check the legality and more
often, the legitimacy of any action of that public functionary. Anything under
the sun can come under the notice of the two Apex courts of
In
Suo moto has
reached the status of an "inherent right" in
Conclusion
While
concluding this discussion on Judicial Activism and Suo Moto, it is necessary
to evaluate the public perception of judicial activism in
One of the
manifold reasons for the success of the concept of Suo Moto is that it is
effortlessly accessible to the poor (which is the majority class in the
country) so for the poor and needy only a simple hand written
"letter" can initiate proceedings in the highest court of Pakistan.
The people who cannot even imagine affording the towering fees of big named
attorney's can simply request the CJP through a letter about any malpractice of
a governmental authority and the CJP (especially the ex-CJP) would be more than
willing to cure the defects by ordering the needful.
In this way
suo moto action is a blessing for those who have been victimized by the might
of governmental authorities. Moreover another positive effect of the suo moto
action is that the governmental authorities in order to save themselves the
embarrassment of being called inefficient or ultra vires through court try to restrain themselves into doing
acts which are within its legal sphere.
The new
concept may be a violation of the rule of separation of powers but the question
then arises, do we actually need a concept such as "separation of
powers"? Is the legislature and executive doing anything according to the
rules of natural justice so that the citizens and the organs (which are made up
of the citizens themselves) are totally honest with the country? Instead of
making the situation worse, the judiciary is helping the country in developing
integrity and responsibility towards citizens, guaranteeing the enforcement of
their fundamental rights and constitutional rights as promised in the
Constitution of the Islamic Republic of Pakistan, 1973.
A developed
country like the U.S which only requires checks and balances for its smooth
running can afford to apply and abide by such a doctrine but where a country
like Pakistan is being dictated by the military for the past 10 years, it is
better for someone to take upon him/her self the responsibility of providing
justice and who else is better equipped or legally capable to provide justice
other than a Judge of the Supreme Court of Pakistan?
The recent
decision of the Supreme Court of Pakistan regarding the holding of two posts
simultaneously by the President i.e. the posts of Chief of Army Staff and the
President of Pakistan has taken the general public by surprise (the Supreme
Court has held with a majority of 6-3 in favour of the President that he can
legally hold the two concerned posts at the same time) because the intensity
and frequency of judicially active decisions since the past few months had
created a strong belief in the general public's mind that the current President
would not be allowed to keep both posts simultaneously.
Is this
decision a product of judicial activism as well or has the government used its
sticks against the judiciary to calm its activism down? No matter
what explanations the Supreme
Court gives in
its
detailed order, the
language of Article 63 of the Constitution of the Islamic Republic of Pakistan
is clear and unambiguous. It clearly lays down that a member of Majlis-e-Shoora
(the Parliament) cannot be a person who has been in the Civil Services of
Pakistan or has acted and worked in a post which is controlled or owned by the
government.
This
decision can also be viewed as judicial activism by the judges by ignoring the
express prohibition in Article 63 of the Constitution of the Islamic Republic
of Pakistan but this time the judicial activism was in favour of one man at the
expense of a nation built up of millions of people.
A final
verdict upon whether judicial activism is favorable or not can be concluded in
making a statement that such activism is favorable for a third world country
like Pakistan where justice and equality is not at arms length for the poor.
Judicial activism has helped societies all over the world in developing their
laws, however such activism should be checked and balanced so that the
judiciary does not become the legislature and the interpreter of law. The role
of the judiciary is to interpret the law as laid down by the legislature and in
doing so it should keep in mind the intention of the legislature as well as the
benefits and detriments of the final decision upon the society. Last but not
the least, the actions and activism of the judiciary should replicate the needs
of the society and any action taken on behalf of the public should be for the
benefit of the public as a whole as opposed to the recent decision of the
Supreme Court regarding the holding of two posts simultaneously by the
President, which is on the face of it tainted with only one person's personal
interests.
----------------------
STANDING TO SEEK JUDICIAL REVIEW
By
MISS ATIKA LOHANI*
All
developed legal systems have had to face the problem of adjusting conflicts
between two aspects of the public interest. The desirability of encouraging
individual citizens to participate actively in the enforcement of the law, and
the undesirability of encouraging the professional litigants and the meddlesome
interloper to invoke the jurisdiction of the courts in matters that do not
concern him.[4] How
serious this conflict actually is, is open to question. As Professor K.E.Scott has written in
his Article “Standing in the Supreme Court-A functional analysis”,[5]
that “The idle and whimsical plaintiff, a dilettante who litigates for a lark, is a spectre which haunts the legal
literature, not the courtroom.” The conflict has been resolved by developing
principles which determine who is entitled to bring proceedings; who has locus
standi.[6]
Locus is a term used in geometry with the meanings
suggested by the Latine “Locus” “Place”. The term is readily extended to higher
dimensions,[7] and also
refers to “the place where thing is done or exists”.[8] “Locus
standi” is “a place of standing; standing in court,”[9]
right to bring an action or to be heard in a given forum; standing[10]
or standing to bring proceedings.
The expression “standing” is defined as “A
Party’s right to make a legal claim or seek judicial enforcement of a duty or
right.”[11] Brennan,J.
in Baker v. Carr[12]
is quoted here while he gave the basic concept of “standing” in that “Have the
appellants alleged such a personal stake in the outcome of the controversy as
to assure that concrete adverseness which sharpens the presentation of issues
upon which the court so largely depends for illumination of difficult
constitutional question.? This is the gist of the question of standing.” It is
appurtenant to quote Joseph Vinning
here, while he says: “the word standing is rather recent in the
Basic Judicial vocabulary and does not appear to have been commonly used until
the middle of our own century. No authority that I have found introduces the
term with proper explanations and apologises and announces that hence forth
“standing” should be used to describe who may be heard by a Judge.”[13]
In the absence of standing, or locus standi, the court has no
jurisdiction to exercise its supervisory power over the impugned action of a
public body. How issues of standing are decided determines who has access to
justice and it, therefore, has a constitutional significance. At its heart is
the question that “are there some decisions of public bodies, the legality of
which is otherwise justiciable, but in respect of which no person has been
sufficiently affected to enable a legal challenge to be made”? to answer yes to
this question presupposes that the primary function of the court’s supervisory
jurisdiction is to redress individual grievances, rather than that judicial
review, which is concerned with rule of law.[14]
The English common law has dealt harshly
with those who maintain others to institute civil proceedings in which they
themselves have no direct interest: Culpa
est se immiscere rei ad se non pertinent.[15]
when an administrative body commits a breach of the law which is, neither a
tort nor a crime, a difficult problem of public policy arises. If a public
authority makes regulations or issues orders or spends money for unauthorized
purposes, or if an administrative tribunal usurps a jurisdiction that does not
belong to it, or if either refuses to discharge its statutory duties, the
matter is obviously one of public importance; but it is not obvious that every
member of the public should be entitled to vindicate the law by instituting
legal proceedings. It would be unwise to assume that the effort of the doctrine
of binding precedent or the power for the courts to award penal costs against
vexatious litigants would suffice to dam a flood of unmeritorious challenges to
administrative action.[16]
According to a survey carried out by L.
Brideges, M. Sunkin and G. Me-sza-ros, in the book “Judicial Review
in perspective”[17]
recorded an interesting analysis of applicants for judicial review. According
to analysis applications were made in 84-88 percent of cases by individuals; of
the remainder 50-60 percent are by companies, 6 percent by central Government,
14-35 percent by local authorities and only 1-2 percent by non governmental
organizations.
Nearly all foreign systems have required that, save in
exceptional cases; a plaintiff must have a special personal interest in the proceedings which
he institutes. In Roman law
it was open to any citizen to bring an actio popularis in respect of a public delict or to sue
for a prohibitory or restitutory interdict for the protection of res sacrae and res Publicae, but title to sue
otherwise depended upon the infringement of a private right. In French
and Italian administrative law administrative action can
be impugned only by those who have a direct personal interest; the range of interests that
provide locus standi is considerably wider
in
English law, included for the first time a statutory
test of standing of general application, and the jurisdictional requirement of
a “sufficient interest”
for an applicant to apply for a judicial review is stipulated by section 31(3)
of the Supreme Court Act, 1981, and in almost identical terms by R.S.C.,
Ord.53, and rule 3. These provisions refer expressly to the court refusing
permission or leave unless it considers that the applicant has standing.[20]
One of the objects of the new test was to save the courts from having to
reconcile the multiplicity of often conflicting authorities which governed the
principles of Locus Standi
under the previous procedure for obtaining the prerogative orders.
In America ”injury in fact test” and “zone
of interest test” are introduced to streamline the question of standing
faced by the courts in a number of cases. The ‘injury in fact’ test requires
more than an injury to a cognizable interest. It requires that the party
seeking review be himself among the injured.[21]
In Data Processing Service case[22]
the Supreme Court of America held more broadly that persons had standing to
obtain judicial review of federal agency action under section 10 of the
Administrative Procedure Act 1946 [23]
where they had alleged that the challenged action had caused them ‘injury in
fact ‘and where the alleged injury was to an interest arguably within the ‘zone
of interests’ to be protected or regulated by the statutes that the agencies
were claimed to have violated.
The question of standing in
During the 19th century the words ‘person
aggrieved’ were construed very restrictively. The extension of the concept of
standing in
But
in 1957, Lord Justice Parker and Lord Denning M.R., departed from this old
test. Lord Denning in his book “The Discipline of Law’ mentioned that “ a case
which is only reported in the local Government Reports i.e. R. v.
Again in R.
v. Commissioner of Police of the Metropolis, ex parte
This principle was accepted as correct in another
important case brought by Mr.Backburn R. v. Police Commissioner, ex parte
The matter of sufficiency of interest came up for
debate again in 1976, in case, R. v.
GLC, ex parte Blackburn,[37]
where it was brought to the knowledge of the court that pornographic films were
being exhibited in London, and the Greater London Council were doing nothing to
stop them. The application for writ of prohibition was succeeded. Lord Denning observed “On
this point, I would ask: who then can bring proceedings when a public authority
is guilty of a misuse of power? Mr.Blackburn is a citizen of
Lord Denning quoted his findings in McWhilter’s case (1973) QB 629, 649
which reads as under “I regard it as a matter of High Constitutional principle
that if there is a good ground for supposing that a government department or a
public authority is transgressing the law, or is about to transgress it, in a
way which offends or injures thousands of Her Majesty’s subjects, then anyone
of those offended or injured, can draw it to the attention of the courts of law
and seek to have the law enforced.” The
The application of the sufficiency of interest test
must be seen in the light of the first important decision by the House of Lords
on this topic, namely R. v. Inland
Revenue Commissioners, exp. National Federation of Self-employed and Small
Businesses Ltd.,[41]
where casual labour was common on Fleet Street newspapers, the
workers often adopting fictitious names and paying no taxes. The IRC made a
deal with the relevant unions, workers and employers whereby if the casuals
would fill in tax returns for the previous two years then the period prior to
that would be forgotten. The National Federation argued that this bargain was
ultra vires the IRC and sought a Declaration to that effect plus mandamus to compel
the IRC to collect the back taxes. The IRC defended by arguing that the
National Federation had not standing. Their Lordships found for the IRC but it
would be misleading to say that they upheld the entirety of the IRC’s claim.The
effect of the decision is happily described by Sir William Wade Q.C. and C.F. Forsyth in “Administrative Law”[42]
as helping “to crystallize the elements of generous and public oriented
doctrine of standing which previously been sporadic and uncoordinated.” Lord
Wilberforce at page 631 of IRC case observed that Gouriet and the IRC
case, in fact, reflect different philosophies. The IRC case eschewed the historical
distinction between the remedies, and took as its touchstone the more liberal
rules for prerogative relief, to which standing for Declaration and injunction were then
assimilated.
The general thrust of the IRC case was that the
standing and the merits often could not be separated in complex cases where it
would be necessary to consider the whole legal and factual context to determine
whether an applicant possessed a sufficient interest. The term merits have
meant that the court would look to the substance of the allegation in order to
determine whether the applicant had standing. This would include:
1.
the nature of the
power or duties involved;
2.
the alleged
breach; and the subject matter of the claim.
According
to P.P. Craig, the term fusion will
be sued to refer to the process whereby courts consider the above list of
factors in order to determine whether the applicant has standing in this
particular case.[43]
To visualize the extended application of standing to
public policy it is pertinent to mention that in Pakistan the concept of
aggrieved person was, for the first time, introduced as a rule of law, in the
Article 98 of Constitution of Pakistan 1962, although courts have applied it as
rule of prudence while they exercised the Constitutional jurisdiction under
Articles 223-A and 170 of 1935, Act and 1956 Constitution respectively. So the
writ jurisdiction u/A 98, of 1962 Constitution could only be exercised by an
aggrieved person. The High Court could
not issue any writ suo motu. The exercise of writ jurisdiction was dependent on
the application of aggrieved person. He could establish his locus standi by
showing that he had a direct
personal interest in the act in respect of which he was
approaching the court for relief in exercise of its extra ordinary
Constitutional jurisdiction, under this Article.
Article
199 of 1973 Constitution also like its predecessor Article 98, stipulated that
the High Court may pass such an order on the application of a person who
approaches the High Court if he is an aggrieved person in terms of Article 199.
It was interpreted in Fazal Din v
Lahore Improvement Trust[44] by Supreme Court that “it is enough for the applicant to
disclose that he had a personal interest in the performance of the legal duty
which if not performed or performed in manner not permitted by law would result
in the loss of some personal
benefit or advantage or curtailment of a privilege or liberty or franchise.
“ In a latter case, Begum Nair
Abdul Hamid v.
The court in Pakistan has for the firs time introduced
the concept of Fusion ( i.e. to decide upon the sufficient interest the legal
and factual context of the case should be appreciated) in Aslam Saleemi, Advocate v the Pakistan
Television Corporation[46]
where the petitioner was an advocate and also an office bearer of a political
party, this was one of the parties of a Political Alliance. The grievance of
the petitioner was that Pakistan Television Corporation was being used by the
government party for election campaign. The party of political alliance to whom
the petitioner belonged was not being allowed to avail the same facility. The
Lahore High Court observed that the meaning of the expression “aggrieved party”
in Article 199 has to be
construed in the context of and on the facts of each case”,
which observation is in line with view of Lord Wilberforce expressed in IRC case in 1982.
Extended meanings assigned to the expression aggrieved
person are also laid down in Miss
Benazir Bhutto v Federation of
In
the case of Dr. Mahboob v Mrs. Nawab
Begum (1992) it was observed that “Construction of high rise building can
cause nuisance to the neighbors or persons living in the same locality can
object on the ground supporting infrastructure; and the residents of the
locality can object on the ground that the proposed building would interfere
with their amenities. So in the
present case, deprivation of any amenity would confer a right on the residents
of the locality to maintain a writ petition.”
The
effect of reading Article 199 (1) (c) and Article 199 (2) together is that the
meaning of a aggrieved person has been enlarged and relaxed. The restrictions
of pre-conditions which may be found in Article 199 (1) do not find any mention
in sub Article (2) of Article 199 where the enforcement of Fundamental Rights
is concerned, therefore, it deserved specific meaning and construction by the
High Court. Sindh High Court held in Sindh
Graduates Association v the State Bank of
With the attitude to
extend the concept of standing to public policy in a proper case to help
redress the grievance the courts have considered the dimensions as well, to
limit the extension where ever it is in greater benefit of justice to deny the
standing than to adhere to the flexible approach thereof. In order to discover
who may be legitimately responsible for the institution of an action for
certiorari, mandamus or prohibition, as the case may be, and to see what
persons have right to apply, the primary aspect to be dealt with is, whether
writ is issuing as a matter of right or according to the discretion of
court. Regardless the question of who
the person aggrieved is, English courts have refused to grant writ of
certiorari, even where grounds were made out for its issuance, if no benefit
could arise from granting it, thus in R. v. Newborough[50]
where allowances were paid under informal and probably void
order and applicant would be unable to recover the money even if order made so,
Lush J. observed that “It is in the
discretion of the court to grant or to refuse a certiorari, and it is not a
matter of right. As the order had acted on, the money paid, and the account
allowed, we think we ought not to do anything to re-open these proceedings”.
Again in Supreme Court ruling in case of Rahmatullah v. Mst. Hameeda Begum[51]
we can see the inclination of the courts in the same fashion as it read that
“Even when an order impugned before High Court is found to be lacking in some
legal, or jurisdictional requirement the Constitutional provision does not
compel the High Court to issue a writ much less that of certiorari or mandamus.
If the result is that by setting
aside such an order another order would be revived which is unjust or unfair or
is otherwise also illegal, then before setting aside first mentioned order
the court will have to examine more carefully the question of exercise of
discretion and in proper cases would decline to exercise discretion, provided
that the setting aside of such an order would result, inter alia into an
injustice or revive another illegal order.” In Dr. Zahida Mir v. the Punjab Public Service Commission, Lahore[52]
it was laid down that substantial justice has been done to both the parties, it
is not a fit case for the exercise of discretionary Constitutional Jurisdiction
to disturb entire selection process and remit the case to the commission, this
Discretionary relief is also denied to a person where it amounts to help him in
retention of ill-gotten gains.[53]
The discussion may be further streamlined by adding D.C.M. YardLey, who opined in his article “Certiorari and the problems of locus standi”[54] and “Prohibition and Mandamus, the
Problem of Locus Standi”[55]that
“The judicial talk of “persons aggrieved” is only a loose covering by the
courts for this general policy of allowing an applicant to obtain a rule if it
is desirable. The court is in fact simply exercising its discretion whenever it
decides who is or who is not a person aggrieved.”
So where a person who has
suffered a legal wrong or a legal injury or whose legal right or legally
protected interest is violated, is unable to approach the Court on account of
some disability or it is not practicable for him to move the Court for some
other sufficient reasons, such as his socially or economically disadvantaged
position, some other person can invoke assistance of the Court for the
purpose of providing judicial redress to the person wronged or injured, so that
the legal wrong or injury caused to such person does not go unredressed and
justice is done to him. Take for example, the case of a minor. So in this
context surrogate standing covers the case where a pressure group
represents the interests of others who are often not well-placed to bring the
action themselves. Associational standing is typified by an organization
which is suing on behalf of its members. Standing has been accorded in such
circumstances where the group consists of persons who are directly affected by
the disputed decision. There can equally be cases where one member of a group
brings the action on behalf of the group as whole, as in Mohammad Aslam Saleemi v. Pakistan Television
Corporation[56]. Public
interest standing is asserted by those claiming to represent the wider
public interest, rather than merely that of a group with an identifiable
member-ship. In this type of case, the decision may affect the public
generally, or a section thereof, but no one particular individual has any more
immediate interest than any other, and a group seeks to contest the matter
before the courts. Some claims of this nature have failed, but a number have
succeeded. A well-known claim which failed was R. v. Secretary of State for the Environment, ex.p. Rose Theatre Trust Co.[57]
Developers, who had planning permission for an office block, came upon the
remains of an important Elizabethan theatre. A number of people formed a
company seeking to preserve the remains. They sought to persuade the Secretary
of State to include the site in the list of the monuments under the
A close scrutiny of authorities shows that Superior
Courts in
To sum up this discussion, observations of Lord Diplock at page 644 in IRC case would be more valuable and
discernible fact where he said “it would in my view, be a grave lacuna
in our system of public law if a
unauthorised/illegal termination of the same. Further,
in the cases of minor, mentally ill and unmarried women, if one gets pregnant
for any reason (apart from application of criminal law--if it entails any
punishment) it must be kept ‘confidential’ between the family of the
‘patient/victim pregnant woman and the staff of an authorised medical hospital,
as it is being practised in UK and India because disclosure of the same can
create irresolvable problems for the aggrieved family and society at large.
Moreover, the
ambiguity in law regarding stages of pregnancy should be clarified in definite
terms of weeks or days on the basis of available scientific research and it
should be obligatory for incumbent doctors of an authorised hospital to perform
an abortion when it is not opposed to law and the conditions compel the same,
to protect the life and health of the pregnant woman. Meanwhile, the acts of
medical officers done in good faith should be expressly protected. The term
“necessary treatment” needs to be redefined on the line of Indian term “grave
injury”. Whereas, the term “physical and mental health” also demands
sympathetic rehabilitation, it should include something like Indian
explanations to section 3.[70] Certain more grounds for the termination of pregnancy
should be provided to avoid confusion pertaining to the cases of rape, incest,
foetal defects, future of existing child, and foreseeable environment of the
potential child.
-----------------------
LEGAL
IMPLICATIONS OF TRADITIONAL AND ISLAMIC BANKING
By
Aamir Abbas,
Introduction
This paper is an attempt to highlight the
practices of traditional banking system comparing it with Islamic one. This is
an exploratory study of existing practices of banks in money, capital and
credit markets where interest based borrowing and lending, though repugnant to
Islamic injunctions, is supposed to be the blood vessels for economic survival
of homo sapiens.
The societal fabric of human being solicits
different socio economic setups and consequently, each society envisions
economic system different to other societies Economic system is an integrated
way of production, consumption and distribution or how the state should
allocate resources among different factors of production. This integrated
system is guided by particular economic system, which a society prefers to
practice. This trend resulted in three different economic systems, present in
the world. These are capitalism, socialism and Islamic economic systems. Each
has its own guidelines for production, consumption and distribution of
resources.
In
capitalism, ownership lies with the individual and individual has absolute
power on his property. He may use his wealth in a way he likes irrespective of
how it creates disorder. This nature of wealth is evident from saying of nation
of Hazrat Shoaib (A.S)
“Does your way of prayer commands you
that we should forsake what our forefathers worshipped or leave off doing what
we want with our own property” (11:87)
This verse reveals that people who reject faith
think that they can do any thing what they want to do with their property
In socialism, ownership lies with the state and
state has absolute power on use and distribution of wealth among various
factors of production.
But in Islam, ownership lies with Allah and man
acts as agent of Allah and can use the wealth under the commandments of Allah.
Quran has authenticated this by
“And give to them from property of
Allah, which He has bestowed upon you” (24:33)
It is clear from above verse that all what
a man possesses has been given to him by Allah and therefore, man has
restricted or conditional power on use of wealth. Secondly, man does not have
unconditional power. Thirdly, purpose of human being is not only to make
profit, as it is in materialism, and enhance living standards. From Islamic
perspective, this universe is a trial of man as Quran says that
And Allah clearly dictates man on how to
utilize the wealth. Quran Says that
“Seek
the other world by means of what Allah has bestowed upon you and do not be
negligent about your share in this world and do good as Allah has done good
with you and do not seek to create disorder on the earth” (28:77)
This
verse provides comprehensive guideline on concept of ownership, purpose of
human being and nature of power from Islamic perspectives. Firstly, this verse
reveals that purpose is to seek the other world. Secondly, what does a man has,
has been bestowed upon him by Allah. And thirdly, man cannot use his wealth in
a way that is likely to create disorder on the earth as last part of above
verse interdicts the unjust use of wealth.
Interpretation
of Riba
The
term Riba derives its meanings from Quran
“O
those, who believe fear Allah and give up what is still due to you from
interest, if you are true believers” (2:278)
Thus
Riba is any excess compensation without any consideration. There are two types
of Riba. One is Riba Al Nasiyah and the second is Riba Al Fadl. The first type
has been prohibited by Quran and is predetermined excess on capital while the
second, has been prohibited by Prophet (PBUH) and it results from sale of
goods. Islam does not prohibit the excess on capital. It only interdicts the
predetermined excess on capital as is practiced in traditional deposit and
credit markets.
In
17th century, two new types of Riba appeared. Some Muslims, who were
looking the speed at which West was making tremendous progress in the field of
economics, science and technology on one side and shattering economic
conditions of Muslim states on the other side, argued that commercial interest
is not prohibited in Islam. It is only usury (sarfi sood), which is prohibited
in Quran. They presented two arguments.
Argument#1
Riba
that was in practice at time of Prophet (PBUH) was only usury
Counter
Argument
When
Islam prohibits some thing, it does not prohibit its one form that is currently
prevalent, it prohibits all types, which may erupt in future. For example,
Quran has prohibited liquor, khinzeer and corruption. The process of making
liquor today is totally different from what it was at the time of Prophet (SAW)
but ruling remains same. Similarly, how pure and clean breeding of khinzeer is
today, it remains haram. Same ruling applies to gambling and interest too.
Commercial interest in one type of riba and is haram.
Argument#2
Commercial
interest did not exist at the time of Prophet (SAW) and is therefore acceptable
in Islam.
Counter
Argument
From
many examples, it has been proved that commercial interest was in practice at
the time of Prophet (SAW). At the advent of Islam, tribe of Mughairah owed a
huge amount of interest to tribe of Umro bin Aamir. Both of these tribes were
trading partners and are thus very rich. To assume that loan between these two
tribes was usury would be very weak argument as both were rich and loan was
simply for investment purpose and resultant interest was commercial interest.
Secondly, Hazrat Abbas and Hazrat Khalid Bin Waleed made a joint company that
used to give loan on interest. Taif was second to Makkah in the field of trade
and Jews tribe “Sakeef“ used to give loan on interest to Mughairah that was
their main customer in Makkah. All these examples clearly prove that commercial
interest was in practice and Islam has also prohibited commercials interest.
Secondly, according to Hadees narrated by Abu Hurrairah, Prophet (SAW) said
that Mokhabara is haram and should be avoided. Mokhabara has more similarities
with commercial interest instead of usury.
Therefore,
to argue that current interest based system falls under the category of Bai is
not reasonable. There are two types of trade as mentioned in Surah Al Baqra.
First type is Bai and second type is riba. In this verse, Allah differentiated
between bai and riba and permitted bai but prohibited riba
Nomenclature
does not make any difference. Calling pig by the name of chicken does not make
it hallal. Ruling stands still and pig is haram. Same rule applies to riba. If
nature remains same, profit rate fixation remains same; changing the name from
interest-based system to profit and loss sharing system does not make it
acceptable. Therefore, while arguing for halal and haram, one thing must be
kept in mind that Islam does not say that there is no benefit of haram things.
It interdicts things whose harms to society are more than their benefits.
References
Ahmad, Ausaf (1993), Contemporary
Practices of Islamic Financing Techniques, Research Paper No. 20,
Islamic Research and Training Institute, Islamic Development Bank, Jeddah.
Al-Gari, M. Ali
(2001), “Credit Risks in Islamic Banks' Finance”, IRTI-HIBFS Seminar on Regulation
and Supervision of Islamic Banks: Current Status and Prospective
Development held in
Al-Jarhi, Mabid Ali,
(2001), “Enhancing Corporate Governance in Islamic Financial
Institutions”, paper presented to the IRTI-AAOIFI Conference on Transparency,Governance
and Risk Management in Islamic Financial Institutions, held in
Al-Omar, Fouad (2000),
“Supervision, Regulation and Adaptation of Islamic Banks to the Best
Standards: The Way Forward”, paper presented to the Conference on
Islamic Banking Supervision,
Al-Sabah, Sheikh Salem
Abdul Aziz (1999), “Regulatory Framework of Islamic Banking in the State
of Kuwait”, keynote address delivered at the CBK-IMF Seminar on Design and
Regulation of Islamic Financial Instruments,
Saunders, John I
(1966), “The Muslim World on the eve of
Suyuti, Jalal al-Din
al- (n.d.), Al-Jami‘ al-Saghir (
---------------------------
BRIDGING THE GAP BETWEEN CITIZENS AND THEIR COURTS
By
MUHAMMAD MAJID BASHIR
B.Com, M.A, LL.B, DLL, DTL,
DIPL, LL.M,
Civil Judge, Judicial Magistrate Sec.30
Director (Legal) PCP
Ministry of Information & Broadcasting, Islamabad.
E-mail: judgemajid@hotmail.com
United States, Supreme Court, Chief Justice William
Howard Traft stated in 1926 that “the real practical blessing of our bill of
rights is in its provision for fixed procedure securing a fair hearing by
independent Courts to each individual”.
An
impartial, independent Judiciary is the custodian of individual rights in a
civilized society. In order for individuals to have faith in their Court
system, all people must have access to the Courts when necessary.
A
judiciary that is seen as fair and independent is an important component in
sustaining their trust and confidence. It is known “Independent of Judiciary”
the confidence of the people.
Living
up to this ideal is a big challenge. It requires the involvement of many
people, including legal educators, legislators, legal professionals, non
governmental organizations and ordinary citizens. Effects to guarantee equal
justice for all take many forms within our legal system.
Our
constitution provides all these guarantees, justice, rules of law, equality
before law, equal protection before law, and right to a speedy and fair trial
by an impartial judge.
Above
all these citizens expect that when conflicts between citizens or between the
state and citizens arise. There is a place that is independent, impartial, safe
and protective from undue influence, that is trustworthy, and that has
authority over all the parties to solve the disputes peacefully and legally
that’s why the Courts are considered the place of refuge.
For
this very purpose and ensuring legal protections and educating citizens of
their fundamental rights and responsibilities, we have to describes how this
doctrine work in practice in Pakistan and how we all will contribute to making
“equal justice for all” a true reality.
Court
system has the mechanism recognized and accepted by all to resolve disputes
peacefully. Alternative disputes resolution (ADR) system is a well experienced
and appreciated system of resolving disputes in all civil society. In
Access
to Justice depends upon access to the Court, access in the theoretical or legal
sense is not enough, rather, it is the results that flow from the decision made
by the Courts that give it meaning. For example, the value of “access” is
evident when the Courts decide that no one, especially those in positions of
power and holding authority, is above the law, or when access requires the
right to counsel in cases where one’s liberty is in jeopardy.
For
the achievement, this idea of open access needs practical application of the
fundamental right to access. The Court under the constitution will have to go
through this judicial mill with grace and dignity. Denying access to the Courts
forces disputes resolution into other areas and results in vigilantism,
violence and disorder of law.
Protecting
children and disabled and mentally retarded persons, equal access to the Courts
is not deserve for adult citizens only. Children, mentally retarded and disable
deserve the save access to the nation’s Courts became they too are citizens and
deserve their day in Courts.
In
Certain
amendments are required in which we have to make testifying in Courts easier
for children.
1. Special
procedures, such as the use of closed circuit testimony and the assistance of
special child advocates preferably lady lawyers can help lessen the potential
trauma to child witnesses.
2. Child
friendly Court rooms, where the furniture is scaled down in size or where the
judge do not sit high above every one else, can help children feel more
comfortable in the Court room setting.
3. The
disable should be accommodated by installing entrance ramps, special elevators,
hand rails, handicapped-accessible bathroom facilities and other modifications.
4. Mental
health counts for the patient special privileges should be given to the accused
on the recommendations of the medical officers.
5. The
legal professions commitment is the next point which can close the heart of the
public with the judiciary.
Now
the role of the Bar associations is absolutely different from its conventional
style. Bar association have to play a role of training institute, it’s the Bar
associations which grant to the councils a force to enforce their rulings on
the two impartial reasons:-
1.
Public trust and
confidence in the system and
2.
A strong
commitment by the Bar to work with the Judiciary to establish and demand
compliance of judicial decisions.
The Bar has to work hard to provide
trained advocated or counsels in new laws to help the public better understand
the proceedings and the reasoning behind Judges rulings in an effort to inspire
public confidence and generate thoughtful public debate.
We should remember that Bar and Bench
are two wheel of Judicial system but we can make our system more stronger by
adding litigants/general public and Court staff as third and forth wheel
respectively.
Our
Judicial family is facing many problems, people from different other sectors
have entered in our profession and giving wrong messages while blaming
judiciary for delay in justice, corrupt in Judiciary, lawyers involvement in
cases ete etc. We have to tackle this problem seriously by providing free legal
services for poor persons.Bar Councils and Bar Associations are already in
persuasion and trying to curb down this mafia through scrutiny and
surveillance.
The Bar
Associations should give citizen a voice and take in the Justice system in
their respective Districts and areas. Bar Associations rule of law activities
support local efforts to improve access to justice by developing legal aid and
public defender programme, improving case administration, developing clinical
legal education initiatives. Bars Associations should educate the public as
well as the members of the association through training programme, seminar and
workshop in the field of advance housing rights, Environmental law,
Intellectual Property (IP) laws, combat, domestic violence, Consumer Protection
law, cyber law, Electronic Crimes, Maritime law, Public interest litigation,
WTO, ADR, Child protection law, Mental health cases, specially when child is
involve in these cases, human traffic king, judicial ethics, Bar and Bench
role. The Bar Association may conduct and hold training sessions in these
fields by inviting resource person from other countries and then may recommend
the trained lawyers to judge for Mediation, Arbitration and local commissions.
On going sessions and training programme should be continued and will remain
the pivotal role of the Bar Associations.
Rights
to representation in criminal cases, it has been seriously observed that the
assistance of an attorney in criminal proceeding has not been provided to an
accused whereas it is a constitutional protection and in all criminal
prosecutions the accused shall enjoy the right to have the assistance of
counsel for his defence. Government should arrange funds for the engagement of
an attorney in criminal cases.
Bar associations may provides assistance to low and
moderate income people in its jurisdiction, through its own staff attorneys,
neighborhood legal clinic and an extensive panel of volunteer lawyers.
Clinical legal education (CLE) is another step to access
to justice. Clinical legal education is a programme which enable law students
to provide legal assistance to person and groups usually too poor to hire
lawyers, working under the supervision of law faculty and sometimes other
lawyers in their communities, law school clinic students learn how to practice
law and solve client problems while providing access to the Courts for those in
need.
Office Bearer of Bar
Association such as the Lahore Bar Association,
In many countries of the world the legislation in high
Courts would have to adopt laws or rules to permit students in clinical legal
education courses to perform the work of lawyers. Even if, students are not
given the license to practice law, clinical courses designed so that students
may do as much of the work as possible under existing law and rules will be a
huge step forward in these countries. In our country law students will feel
more secure, confident and interestingly work in law field. We may remove this
sign of frustration which normally exists among young lawyers and ultimately
eliminates poverty and unemployment through implementation of clinical legal
condition.
Educating the public and reforming the judicial system.
Most citizens knowledge of their Court system is limited to their experiences
as litigants, witness there should be a programme from Government to educate
the public at large and to improve the quality and administration of justice.
Govt. may engage civic organizations, Bar Associations,
Media and Government watch dog groups in its efforts to effect Court reform and
to increase public confidence, it is very difficult to place a label on the
relationship Pakistani citizens have with their Courts. Although, the Courts
exist to serve the people, the judge’s duty is to apply the law in a fair and
even handed manner. Education is the best way to resolve this tension, both of
the citizenry and of the people who staff and run the Courts. Bar Association,
media and non governmental organization can fill the role of educators,
communicator and facilitator, bridging the gap between citizen’s expectation
and the counts role.
We seek
to engage citizens in all of our work. We speak to community groups, design
programme for schools and publish and distribute citizens guides about the
Courts.
Citizens must be educated about the Courts, the
importance of Courts and the need for change only with such knowledge can they
be fully engaged in the effort to achieve reform. Good Judicial system is the
need of the hours. Bars Associations and judiciary will have to work very hard
to carry on this system, in this programme we may design programme on judicial
ethics, equality and fairness, programs for witnesses, legislating changes,
Court fee, process of summonses and notices. I believe that initiating the
separate sphere of the public and the Courts will enable us to improve the
Courts and restore public confidence in the judiciary and the Court system.
Another step towards that direction would be Street Law.
We should introduce street law for the service to the community, street law is
a course in practical law, its focus is on the law that affects persons and
every day lives more than 30 years ago, Georgetown University in Washington DC
created a programme for its law school students to teach a course in a few
local public high schools in the fundamental of law, democracy and human
rights. The project became known as street law and eventually was extended to
all public schools in the nation’s capital. Street law materials have grown
from loose-leaf binder of lessons to a unique text book, now used in school
districts in all 50 U.S states.
Street law, in which law students worked with community
groups and somebody had the idea not only to work with community groups but
also to actually teach in high school classes.
The street law book contains a general introduction to
law and chapters on specific topics such as criminal law, consumer protection
law and individual law. The book also is filled with problems, case studies and
hypothetical solutions which are meant not to be just read as information but
to be participated in by the reader and to be taught in an active way.
Street law helps the students become critical thinkers
and participators in government. The street law class develops analytical
thinking, expressive writing and logic types of skills.
In role plays, debates
and trials the students are doing the thinking and the talking in a well taught
street law class, you engage the students in more writing and more articulation
which enhances their literacy skills. If, we chase the history, it is quite
clear that how role of Judiciary had been remained very effective on all sector
of the society. The more you involve masses in understanding of law or in judicial
system, the more you produce sensible citizens.
Effective Judicial System has an impact on economy,
democracy, culture, communities and building up of societies. This pillar of
state is very strong which creates civic sense among the masses which leads to
safety culture. The safety culture is the real difference between developed and
developing countries.
--------------------------
WHEN CONSTITUTION IS INEFFECTIVE
By:
1. The Constitutions always specify the
principles whereby the state confers rights upon its citizens. The Constitution
is not a cause but is a consequence of personal and political freedom. No
doubt, a person has a right to do something but it is not meant that the said
right is not subject to any limitation. It is universal principle that rights
carry with it the some restrictions.
2. There are certain absolute rights and
those rights are always protected by the Constitution. A society where rule of
law prevails, the people are assured that their Fundamental Rights are
protected. The Supreme Court has laid down in PLD 1991 SC 412 that protection
of social justice amounts to eradication of social evils and protection of
illiterate, poor persons in accordance with the tenants of Islam, while
co-existence of power and corruption amounts to frustration of the
Constitutional guarantees.
3. Article 2-a: Provides that
Objective Resolution is a substantive part of the Constitution. No doubt, it
has been observed by the Supreme Court in 1993 SCMR 1718 that Objective
Resolution after the incorporation of Article 2-a has not been fundamentally
transformed from the role envisaged for it at the outset that it should serve
as beacon light for the Constitution makers. While it was held in PLD 1987 Kar.
466 by Mr. Justice Tanzeel-ur-Rehman that even the law declared by the Supreme
Court is subservient to the provision of Article 2(a) of the Constitution. The
Courts are bound to declare any law repugnant to the injunctions of Holy Qur'an
and Sunnah. These powers can be exercised by the
4. Article 3: It is incumbent upon
the State to eliminate exploitation in any form which is opposed to human
dignity and freedom of individual. The state should ensure that people are not
exploited because of their wants, needs and due to economic compulsions. They
should not be compelled to adopt a profession which is against their age and
sex. It is Fundamental Rights of every person not to be forced to work without
payment of labour, thus it is responsibility of the state to provide protection
to the destitute, infirm persons, women, children and citizens against
exploitation. Due to the New World Order, the new economic culture has emerged.
The economic growth in the under developed countries has been jeopardized and
sale of the national assets on throwaway prices is an exploitation which is
unwarranted under the Constitution. The sale of the Pakistan Steel Mills, Habib
Bank, United Bank, American Fertilizer Company and other national assets in
haphazard manner is the result of the exploitation, thus only Constitutional
Courts can come to the rescue of the public at large against this exploitation.
The decision of the Supreme Court of Pakistan PLD 2006 SC 697 (Steel Mills
case) is an eye opener. The golden shake hand culture has been introduced in
5. Article 4: This Article envisages
that every person in
6. The establishment is not conscious of the
concept of the sovereignty of nation. The Government cannot take any action
without legal sanction and at the same time the legislature cannot create any
authority especially when its actions are not subject to law. Any illegal exercise
of jurisdiction cannot be validated when a person has not been dealt with in
accordance with law but every regime has got validated its acts and omissions
by amending Article 270 of the Constitution. The Supreme Court has upheld the
judgment of the High Court that state land cannot be allotted to the Government
servants. The said judgment is reported in (Brig: Muhammad Bashir case) 2004
PSC 453, but the said judgment has not been followed as such executive
authorities are not performing their duties in accordance with law,
subsequently, allotment of the land to the Government servants is not in
accordance with law. Thus it is apparent that due process of law is being
frustrated, as such, Article 4 of the Constitution has been made ineffective.
7. Loyalty to the State: Obedience to
the Constitution and the law is the basic obligation of every citizen. As
envisaged by Article 244, "every member of armed forces of
8. Article 6: Any person who
abrogates, conspires or subverts the Constitution shall be guilty of high
treason and punishment is to be provided by the Parliament. The High Treason
Act of 1973 has been enforced on 29th September 1973 (PLD 1974 Central Statute
34). Section 3 of the above said Act provides the procedure where a complaint
in writing can be made by a person who is authorized by Federal Government in
this behalf. Till today, no person has been authorized by the Federal
Government to lodge the complaint, as such; this Article is ineffective due to
administrative reasons. It has been observed by the Supreme Court in PLD 1993
SC 473 at page 601 that under the Constitution, the Parliament has discharged
its duty on 29.09.1973 by framing requisite law on the subject, but the Federal
Government has not so far designated the authorized person who can lodge the
complaint. It is not the Constitution but the executive has failed to give
meaningful operational machinery for the enforcement of Article 6, thus
frustrating this Article in letter and spirit. If this Article would have been
operational, nobody can dare to suspend or abrogate the Constitution.
9. Article 9: This Article envisages
that any person cannot be deprived of his life and liberty, therefore,
detention of any person by the security agencies amounts to violation of
Article 9 of the Constitution. Many citizens have been deprived of their
liberty. They have been arrested and deported; tried and executed, thus,
deprived of their life and liberty, which was not in accordance with law. Not
only deportation of Aimal Kansi to
10. Article 10: This Article also
safeguards the arrest and detention of the citizens. The citizens are being
illegally detained, thus the Fundamental Rights guaranteed by this Article are
frustrated. The detenue can file a representation, and during the pendency of
the representation the detention period expires. Thus, the detenues are being
deprived of legal remedies, and they are debarred to seek the enforcement of
Fundamental Rights through the legislative process. Article 10 is ineffective
due to the administrative hurdles.
11. (Supreme Court of India has declared in AIR
1966 SC 239 (State of MP Vs. Shuba Ram) that the right to defend the accused
includes not only to defend the citizens against the illegal arrest but legal
advice should be provided) but in the departmental inquiries the civil servants
have been denied the right to seek the assistance of the legal practitioners.
Under Rule 8 of the Punjab Civil Servants E&D Rules, the civil servants
cannot engage or consult a legal practitioner; thus practically Article 10 has
been frustrated by incorporation of similar provision in the Civil Servants
E&D Rules, framed by the Central Government. These rules are violative of
the Fundamental Rights.
12. The delay on the part of the Government to
consider the representation was deprecated in writ petition and the detenue was
released in
13. Article 11: Provides safeguards
against the trafficking in human beings but unfortunately the girls and boys in
14. Article 12: The NAB Ordinance 1999
was enforced, wherein according to Section 2, the Ordinance shall be deemed to
have come into force from the 1st January 1985, while the same violates Article
12 of the Constitution; whereby any person cannot be punished when the act or
omission was not punishable by law at the time of such act or omission.
15. Although protection of Article 270 of the
Constitution is being raised as a defence but it has been observed by Mr.
Justice Mian Nazir Akhtar (minority view) in Shahida Faisal case (PLD 2000 Lah:
508) that retrospective effect has been given to the NAB Ordinance 1999 while
the same is also violative of universal declaration of Human Rights, thus, from
the above said observations, it is apparent that Article 12 of the Constitution
has been frustrated and made redundant by the present regime.
16. Article 14: This Article declares
that dignity of the man is inviolable and privacy of the person is also
inviolable as such the police raids on the dwelling house are violative of
Article 14. It is held in PLD 1993 SC 473 that the President can neither
dissolve National Assembly nor he can dismiss the Prime Minister and his
Cabinet. The charge of subversion against the Prime Minister is violative of
Article 14. The speech of the Prime Minister does not amount to subversion,
because subversion being high treason, the same is the most serious offence
that can be committed against one's own country. The President has no authority
to pronounce such a findings. Although subsequently the same Prime Minister has
been removed in violation of Article 14 of the Constitution. The dignity of
Ex-Prime Minister has been violated while he was expelled from the country.
17. Article 15 Extends protection to the
freedom of movement of every citizen of
18. In spite of the above observations of the
Supreme Court, Mr. Shahbaz Sharif as well as Mian Nawaz Sharif have not been
allowed to enter in the country and they have been deported from the country:
thus this Article has been frustrated by the present regime as such Article 15
has been defeated. Even otherwise, the Charter of the Human Rights Declaration
has been vioalted and former Prime Minister of Pakistan has not been treated in
accordance with law and he has been deprived of the equal protection of law.
19. Article 16: Freedom of assembly is
an essential element in a democratic set up. The right to lead a procession is
neither a right of easement nor customary right but it is a Fundamental Rights.
However, the people of
20. Article 19 guarantees the freedom of
speech and expression as well as Fundamental Rights of freedom of press. In the
Constitution of 1956 freedom of press was not specifically guaranteed. One
cannot deny that a free press stands as one of the greatest interpreter between
the Government and the people. Freedom of press implies a right to acquire
information and right to acquire information includes the right of access to
the source of information (AIR 1973 SC 106). The said right has been
highlighted by the Supreme Court of Pakistan in PLD 1993 SC 473. The right of
citizen to receive information can be inferred from the freedom of expression
guaranteed by the Article 19 of the Constitution. The Freedom of Information
Ordinance was promulgated on 10.01.1997, but the same lapsed; even otherwise,
the said Ordinance was not a big achievement. The said Ordinance does not allow
to receive information in respect of appointment, promotion and dismissal of
the Government servants while the public has legitimate interest in
appointment, promotion and dismissal action of the civil servants and the
judiciary. The citizens of this country have every right to have access to the
working of the Government. Subsequently, Freedom of Information Ordinance was
enforced on 26.10.2002. Even a perusal of Freedom of Information Ordinance
section 8 will reveal that noting on file, minutes of the meeting and any inter
medial opinion or recommendation have been excluded from its purview. Thus the
corruption has been saved from its exposure to the public; unless and until the
clause 'A', 'B' and 'C of section 8 are not deleted, the same are hurdle in the
freedom of information. While definition of public body in section 2 (h) is
available, the same has been restricted to ministers and attached departments
of the Federal Government, thus, Provincial Government, Autonomous Bodies have
been excluded from the purview of the Ordinance as well. There is no
justification to exclude the same because everybody is conscious that due to
pressure of the donor agencies, this Ordinance has been enforced but still the
executive has tried its best to exclude provincial ministries etc. from the
purview of Freedom of Information Ordinance. There is no justification to frame
separate laws for the provinces because this law was promulgated to ensure the
Fundamental Rights incorporated in Article 19 of the Constitution. It will not
be out of place to mention here that freedom of information rules have been
published in the year 2004. This Ordinance is enforced to protect the wrong
doers. A fine can be imposed upon the complainant if the same is malicious,
frivolous, false; thus, harassing and humiliating the complainant especially
when he is at the mercy of the authority who will determine whether the
application is malicious or frivolous, even otherwise, many restrictions have
been imposed upon the media.
21. There is no such provision in the said
Ordinance that classified record will be declassified after 30 years, thus
creating hurdle in the way of persons who are in search of truth. The above
said Freedom of Information Ordinance does not fulfil the requirements of
Fundamental Rights as guaranteed by the Constitution, while the same frustrates
the basic concepts of the above said Article of the Constitution.
22. Article 24: After bare perusal of
Articles 23 and 24 of the Constitution, it will transpire that under Article 23
every citizen has a right to acquire, hold and dispose of property, while under
Article 24 no person can be deprived of his property compulsorily, save in
accordance with law, and the property cannot be acquired except for public
purpose. As such any person cannot be deprived of his property, but generally,
without acquiring the property, the same is utilized and usurped by the state
functionaries. It was declared in 1997 MLD 1792 that when an owner of property
was deprived of his property without payment of compensation, penalty was
imposed by the High Court; as such, it is evident that tendency of depriving
the citizens from their property without due process of law is the rule of the
executive while administration does not care for the Constitution and they are
acting in an unwarranted manner. Thus, the above said Article of Constitution
is being violated and the poor citizens are helpless against these atrocities.
It will not be out of place to mention here that the word “Public Purpose"
has also been interpreted in 2003 PSC 1196 and citizens are being deprived of
their if properties for the undue advantage of the land grabbers and Article 24
has been practically been negated by the administration.
23. Article 25 envisages that all the
citizens are equal before law and they are entitled to equal protection of law.
Equality before law is not present in this part of the World. Civilians and
political workers/opponents are being prosecuted under the NAB Ordinance, and
protection has been extended to the Generals and the judiciary. Thus the
concept of equality before law has been frustrated NAB Ordinance because
majority of NAB infected persons are the ruling elite.
24. In India allocation of 33% marks for oral
interview at an examination was declared as violutive of the equal protection
of law in AIR 1981 SC 487, AIR 1984 SC 1420 while in Pakistan seats are
reserved in the educational institutions for the privileged classes. The
political workers are being prosecuted under the NAB Ordinance and under
Anti-Terrorist Act, 1997 but the persons having political affiliation with the
ruling JANTA are protected by the administration. It is very strange that when
it has been declared in PLD 2000 SC 869 that Chief of Army Staff being a holder
of Constitutional post cannot be removed in violation of the principles of
natural justice that no one should be condemned unheard. Whether the elected
Prime Minister of Pakistan who is also holder of a Constitutional post can be
removed in violation of the principles of natural justice: thus, the equality
before law has been omitted from consideration. The time is not far when this
controversy has to be resolved and at least equality before law should be
provided to the Prime Minister who is also a holder of Constitutional post;
thus this Article has been omitted from consideration in Zafar AN Shah case.
25. Article 27: Prescribe that no
citizen shall be discriminated while in the service of
26. Article 35: (Protection of family
life): The state is bound to protect the matrimonial life of the families and
state is bound to safeguard this Fundamental Rights but the said rights are
being violated by the police. Knowingly that the girl is married to another
person, despite the decision of Full Bench case (Hafiz Abdul Waheed Vs. Asma
Jilani) reported in PLD 1997 Lah: 301 which has been upheld by the Supreme
Court in PLD 2004 SC 219, still Family Courts Act has not been amended and
power of registration of marriage has not been conferred upon the Family
Courts. Thus state has failed to protect family life of the citizens, resulting
in the violation of Article 33.
27. Article 37 envisages that state
shall arrange for the technical, professional education to all on the basis of
merits but the poor students are being deprived of their access to higher
education due to introduction of self-finance scheme. The children of middle
and poor class have been deprived lived of the right of professional education
due to poverty.
28. Double standard of education has been
introduced which is clearly violative of Article 37 of the Constitution and the
students of wealthy class and high ups are getting better opportunities through
the walk in interviews while the other citizens of this country are not
provided with equal opportunity in higher professional education as well as in
jobs.
29. Article 37(d) envisages inexpensive
and expeditious justice. Despite the decision of the
30. So far as expeditious justice is concerned,
despite this fact that
31. So far as Article 37(b) is
concerned, the education is expensive and rate of illiteracy in
32. Article 38: The state shall care for
the well being of the people and facilities should be provided for livelihood
within the available sources of the country: but millions of people of
33. Article 38 (a): envisages that
"the concentration of the wealth will be prevented. It has been held in
PLD 1992 Lah: 277 that concentration of wealth in few hands must be avoided. It
has been declared by the Supreme Court in 2004 PSC 453 that we have no
hesitation in our mind that land cannot be allotted to any person who is in
service of Central/Provincial Government, any development authority,
Semi-Government, Institution and Local Bodies": as such, allotment of land
to the Generals is unwarranted. But in spite of the above said decision the
land is being allotted to the Generals thus frustrating the clause (a) of
Article 38, whereby, the wealth is being concentrated in a class. Objectives of
Article 38 can only be achieved and concentration of wealth can be prevented
when the prices of the commodities come out to affordable prices:-
i) When
the corruption will not be validated and the same will be unearthed.
ii) When
legal cover to the corruption will be withdrawn.
iii) Allotment
of land and plots to the Generals will be stopped and these resources will be
utilized for the masses, otherwise, this Article is ineffective: The same may
be deleted from the Constitution due to its ineffectiveness.
34. Article 38 (e): The state shall
reduce disparity in the income of earning of individuals, but in Pakistan
certain individuals are receiving exorbitant remuneration and the services of
subordinate staff are terminated and they are being hanged at the altar of
golden shake hand: as such, millions of employees have been deprived of their
livelihood. Article 38 (e) also narrates that state shall eliminate RIBA but
after the remand of the case by the Supreme Court, Federal Shariat Court has
failed to perform its Constitutional functions The state has failed to
eliminate RIBA: thus Article 38 (e) has become redundant.
35. Article 63: In view of the rule laid
down in PLD 1995 Lah: 541 (Ch. Iltaf Hussain case), this Article has become
redundant because at the time of the filing of nomination papers,
disqulaification cannot be kept in view and only qualification can be taken
into consideration. This rule of law has been approved by the Full Bench (PLD
1998 Lah. 461, Mr. Rafique Tarrar case) whereby the question of disqualification
cannot be considered at the time of filing of nomination papers; the same has
resulted in the redundancy of this Article because now a disqualified person
can be elected. These judgments have paved the way for unconstitutional
protection to the violaters of the constitution, on the other hand it has been
held in PLD 2002 Lah: 521 (Umar Ahmad Ghumman case), "the disqualification
comes into play the moment a person becomes a candidate or seeks
election". It was also held in 1995 CLC 158 that Haji Aman Ullah Khan
petitioner was an employee of Afghan Refugee Foundation as such he cannot
contest the election within bar of two years. It is held in 1993 MLD 2489 that
Article 62 and Article 63 are interlinked and have to be read together and not
in isolation. Abida Hussain was an Ambassador on contract basis as such she was
disqualified to contest the election. The above interpretation has resulted to
negate this Article. Thus, the Supreme Court of Pakistan was penalized and
scraped when the Court was interpreting Article 63.
36. Article 63(a): The Speaker has
refused to entertain the recommendation of the parliamentary party in respect
of the some members who were said to have defected their parliamentary party.
The Speaker turned down the reference on the ground that he could not recognize
the leaders of the parliamentary party, in this way, the government has
frustrated the above said Article 63(a) of the Constitution. It will not be out
of place to mention that in Pir Ghulam Sabir Shah case PLD 1995 SC 66, if the
above said menace of horse trading would have been eliminated, the government
should not have dared to frustrate defection clause. "Lota Political
Culture" is flourishing and the Constitution is sinking. The members of
the opposition were persuaded and they have been shifting their loyalties. Thus
the said Article has practically lost its efficacy.
37. Article 63 (1)(k): clearly
transpires that a person who is in service of Pakistan cannot be elected as
member of the Parliament; as such, Pervez Musharraf cannot be elected as
President of Pakistan, unless and until, the said Article is not amended.
Through the subordinate legislation this Article of the Constitution cannot be
frustrated. General Pervez Musharraf was holding the office of Chief of Staff
thus he has practically negated this Constitutional provision. Disqualification
on the ground of defection has also been negated by the Speaker of Punjab
Assembly.
38. Articles 78 & 118: It is
essential feature of the democratic government to control the public tunds. It
is the duty of the government to receive and recover the taxes and other
amounts and the same should be accounted for in the public exchequer. It may be
pointed out that certain public money generating institutions are not being controlled
under the Constitution, which amounts to a state within state.
39. Defence Housing Authorities have
been exempted from the registration of the sale-deeds and the said Authorities
are recovering the exorbitant fee from their members and utilizing the same.
The armed personnel are performing their duties in F.W.O, LAFCO and NLC.
Whether earnings of the said Authorities are becoming the part of the public
exchequer and whether they are accounting for their expenditure as such
Constitutional provisions in this behalf are being violated.
40. Article 175 (2): provides that any
41. Article 175(3): The judiciary has
been separated from the executive keeping in view the rule laid down by the
Supreme Court in Sharaf Faridi case, PLD 1994 SC 105. The said Article is a
self-operating provision of the Constitution and separation has taken place
since August 1987, while keeping in view the direction by the Supreme Court,
the process of separation has been implemented, as such, Article 175(3) is a
past and closed transaction and is no more required for future guidance.
42. Article 203(d), (3-a): This clause
was introduced when the Parliament was not in existence. Now the laws cannot be
amended by the President or the Governor. Laws can only be amended by the
Parliament as such this clause is liable to deletion being superfluous one.
43. Article 212: The unfettered and
unrestricted powers of the executive to appoint Chairman and members of the
Service Tribunal is affecting the independent functioning of the tribunals,
because members of the tribunals carry a sense of obligation to the executive
for having been appointed by them. The appointment of the members and the
Chairman has prejudicial effect on the independence of the tribunal. Secondly,
as envisage by the proviso of Section 4 of the Service Tribunal Act, 1973 an
appeal does not lie to the tribunal unless the aggrieved person has preferred
an appeal, application, review or representation before the concerned authority
and a period of 90 days has not expired, thus, the aggrieved persons have been
deprived of any legal remedy till the expiry of 90 days which amounts to denial
of justice through the subordinate legislation. The aggrieved persons cannot be
deprived of right of judicial review for this long period of 90 days. Even
otherwise, the Service Tribunal has no original jurisdiction, as such, the
Article 212 and the law enacted by the legislature has practically frustrated
the right of judicial review available to the aggrieved persons under Article
199 of the Constitution.
44. Article 230(4): The Islamic Ideology
Council shall submit its final report within 7 years of its appointment. The
Constitution was enforced in 1973. Islamic Ideology Council has failed to
submit its final report within stipulated period. Such report has not been laid
before the Parliament within the requisite period nor the laws have been amended
in accordance with the final report, as such, it is a mockery with Constitution
to retain such provision which is ineffective.
45. Articles 238 & 239: Prescribe
the procedure for amendment of the Constitution. Only Parliament can amend the
Constitution while the Constitution cannot be amended by votes of less than 2/3
majority of the total members of the House. The said Article does not confer
powers upon Supreme Court lo allow an individual to amend the Constitution:
thus, the said Articles have not been kept in view while granting permission to
amend the Constitution to the Chief of Staff in Zafar Ali Shah case, PLD 2000
SC 869 and subsequently by the newly inducted judges in 2007.
46. Article 244: This Article envisages
that every member of armed forces of the
47. Article 253: envisages that the
Parliament can prescribe maximum limit of property that can be owned, possessed
or controlled by any person, but the land Reforms were declared to be against
the injunctions of Holy Qur'an and Sunnah in PLD 1990 SC 99; as such, this
Article was practically omitted from consideration. Now any person can retain
unlimited holding. This Article of the Constitution has become ineffective due
to above said judqment.
48. Article 270(c): is a new proivsion
and the same was incorporated through Legal Frame Work Order, 2002, whereby,
the Judges of the Constitutional Courts having taken oath under Oath of office
(Judges) Order, 2002, the oath was validated. But on the other hand, the Judges
who were not given the oath they were not allowed to be restored. Nothing can
be said more than this that the amendment has frustrated the independence of
judiciary, even otherwise, the same is a stigma upon the Constitution and the
same should be deleted.
49. The self serving amendments have altered
the basic structure of the Constitution and the same has been mutilated by the
rulers. The biggest failure of the rulers is to develop a national consensus on
workable framework and the Constitution has lost its sanctity.
50. According to the Laski's theory, the
control of Armed Forces is an essential element of sovereignly of the state and
the Armed Forces are under command of the state. Once the state loses the
command it becomes ineffective and must either change the law or abdicate it.
51. Only democracy can provide economic
dividends to the people. Now the people are suffering because we have failed to
evolve a system of good governance. We should follow the Constitution for
achieving the welfare of the people.
52 No doubt, the Constitution is a document
for all times to come which flourishes with the passage of time and in accordance
with the requirements of the society. The Constitution is a permanent document.
Thus it is essential that undemocratic amendments should be omitted from it.
------------------------
HUDOOD ORDINANCE AND GENDER
DISCRIMINATION IN
By:
MAIMONA KHANAM*
INTRODUCTION
The
Hudood Ordinance of 1979;[71] introduced by then
President of Pakistan, General Zia-ul-Haq[72] was overall part of his
process of Islamization in the country.
ABSTRACT
The
Hudood Ordinance of 1979 was not properly evaluated by the Pakistani Muslim
jurists under the present circumstances which have created an anomaly in its
interpretation and practice within the society, which affected the different
sects of society. For example General discrimination was one of them where this
ordinance has categorically victimized the women.
The
discussion in this article has been focused on those impediments and
implications which has affected the status of women under Hudood Ordinance in
DEFINITION
The
offences under the Islamic law from the point of view of their proof and
punishment can be divided into `Hadd’[73]
and 'Tazir'[74].
In Holy Quran the word 'Hadd’ has not been used in a singular but it has been
used at fourteen places in plural in the sense of restriction or bounds set by
Allah. The ' Hudood' of Allah are of two kinds. First those ordinances
prescribed to men respecting eatables and drinkables and marriages. What are
lawful and what are unlawful. The second kind of punishment prescribed or
appointed to be inflicted upon him who does that which he has been forbidden.
The
Law dealing with these crimes is known Hudood Laws. The 'Hadd' crimes are Zina
(Adultery) or unlawful intercourse. `Qadf’, (false accusation of
unlawful intercourse), drinking wine, theft are high way robbery.
According
to the Islamic injunction for the implementation of Hudood Laws four 'Tazkia-al-Shahood'[75]
witnesses are necessary.
During
Khalafat period and after that almost in all the Muslim states where Courts
were established under Shariah, a regular institution of purgation for equity
into the character of a witness was set up under a Qazi. The institution of
purgation was developed to meet the requirements of Quranic Injunction and
Sunnah necessitating the purgation of witness required to beat testimony before
a Court of Law. Under Quranic injunctions it is obligatory for every Muslim to
been testimony and concealing of the evidence is not Law full".[76] It is enjoined in Sura
Baqra, Ayat No.283 that "conceal not evidence: for who ever conceal it,
his heart is tainted with sin"
Regarding
Zina the Quran states. "The women and man guilty of adultery or
fornication, flog each of them a hundred strips; let not compassion move you in
their case, in a matter prescribed by Allah if ye believe in Allah and the last
day, and let a party of believers witness their punishment".[77]
On
the issue of Qadhf, the Quran states, "and those who launch a charge
against chaste women, and produce not four witnesses (to support their
allegation) flog them with eighty strips: and reject their evidence ever after;
for such men are wicked transgressor".[78]
HADOOD
ORDINANCE
The
Hudood Ordinance is a composition of four different Ordinances and schedules
comprising on the following:
1. The Offence of `Zina' (Enforcement of
Hudood) Ordinance, 1979 (Order VII of 1979).
2. The Prohibition (Enforcement of Hadd
Order. 1979. (Order IV of 1979).
3. Offence Against Property (Enforcement of
Hudood) Ordinance. (Order VI of 1979).
4. Offence of Qazf[79] (Enforcement of Hadd)
Order 1979, (Order VIII of 1979)
The
above mentioned Laws are equally enforceable throughout the country, as these
have been made applicable on all individuals who fall within the mischief of
these Laws, irrespective of religion, caste, and creed excepting of course,
those provisions which create certain exceptions in case of non- Muslims.
CRITICISM
The
Hadood Laws are under direct attack of criticism by the all walk of life in
1. As being clearly discriminatory and
causing grave injustice to women and minorities.
2. As violative of the basic principle of
justice, equality and human rights.
3. As badly constructed law.
4. As not being in accordance with Islamic
injunctions, which categorically declare that there shall be no discrimination
on the basis of sex alone, and further states that all citizens are equal under
the law and entitled to equal protection of law.
It
has been said very emphatically that the Hudood Laws are aimed at stopping
cruelty. But in practice "The Zina Ordinance of 1979 has also contributed
to restricting women's rights. The gender discrimination inherent in it has
sent an affirmative signal to that intent a treating woman as second class
human being with fewer rights than men. At the same time it has provided a
handy tool with which to punish women who take any initiative with respect to
their choice of a spouse, police continue to register complaints of abduction
and Zina against women who have married of their own free will".[80]
Some
times Zina is committed at victim's home. According to sec 4 of this Ordinance
''offence of Zina, Women, held, could not be punished for offence of Zina if
committed against her will, forcible or during sleep or while under influence
of some intoxicant administered to her against her will".[81]
Some
time circumstantial evidence is bypassed by the S.H.O (Station House Officer)
while lodging F.l.R (First Information Report) and women is victimized.
"In cases under the Hadood ordinance, the investigation is more often
unsatisfactory for example in a case of Zina, or rape the entire family is
roped in, as accused persons without realizing that this mixture of untruth
with truth may render the truth as doubtful.
Some
times proof of Nikah (marriage) is furnished which negates the charge of Zina,
and yet the husband and wife have to run the risk of criminal prosecution. More
often the girl is first arrested and then with the collaboration of the members
of her family, she is pressurized to deny the Nikah in order to involve the
male. There are cases in which the prosecutrix is not medically examined till
quite late. Thus the corroborative evidence is completely ignored.
It
is a matter of general observation that in cases where the abductees is taken
to different places no attempt is made by police officer to pinpoint the
locality where she was taken and to collect evidence from there, similarly the
neighbours from the locality where she was taken away and to collect evidence
from there, are rarely examined. It is very difficult to prove a case of taking
away under Section 16, offence of Zina (Enforcement of Hadood) Ordinance
1979".[82]
Women
forum often criticize that it totally ousts women's testimony in the imposition
of Hudd or maximum penalty. If Zina is committed in presence of a women
witness, only the offender is escaped. In this way woman is deprived of
testimony. There is no legislation on this point.
Under
the Ordinance, distinction is made between Hadd and Tazir for Zina, as Hadd
punishments are generally more severe and require a more rigorous standard of
proof. If the accused confesses the crime, or if there are four pious adult
Muslim male eye-witnesses to the actual act of penetration, the Hadd penally
may be applied. This higher standard of evidentiary requirement is not met, and
if there are other complications as well (appeals retractions of confessions,
etc)
The
Zina ordinance has equated rape and adultery, although adultery is an act of
consent while rape is a crime of violence. Thus rape is treated as "a form
of adultery' even though it is without the consent of the women being violated.
Another
objection with regard to Hudood laws is that for theft 4.457 grams of gold or
equivalent amount of money is sufficient for the imposition of Hadd, where as
the Holy Prophet (SAW) fixed it as the price of the most costly item of his
time. The price of 4.457 gram of gold today is nominal, and it is unjust to
inflict the punishment of amputation of hand for such a small amount of money.
It can be amended according to present circumstances through Ijtihad.
IMPLICATIONS
Under
the Ordinance a victim of Zina has to suffer a lot due to expenses and other
hardships. If woman becomes pregnant she is sentenced but man is acquitted.
There are also procedural gaps in the implementation of theselaws. The most
critical point with regard to Zina Ordinance is that no difference is kept
between Zina and Zina-bit-Jabr.[83]
Same proof is required for both.
Women
have suffered Jail though some times they are not guilty, jail manual does not
allow her to be treated as accused. She is generally treated as convicted.
Qazf
Ordinance has also turned out to be a weapon for the victimization of women. It
would be tragic if the Hudood itself become a tool of cruelty. Punishment is
not an end itself. Enforcing Hudood on the poor and exempting the rich and the
influential is in itself a negation of the concept of Hudood. It also seems to
be violation of the constitution, which categorically declares that "there
shall be no discrimination on the basis of sex alone and further states that
all citizens arc equal under the law and entitled to equal protection of
law".[84]
The
early years after the introduction of the Ordinance, while the Courts still
trying to grapple with interpreting and enforcing the new provisions, were
amongst the worst for women in
Experience
of the Courts ensured that there would be even fewer reported cases, if it were
not for the situations where women are compelled to report rape i.e in cases of
pregnancy or in cases of Zina are lodged against them.[85] The reason behind all is
that women have a fear of facing worst circumstances after case is decided.
Civil society does not accept her whether she is innocent or guilty. Further
more she is afraid of loosing protection and defending her self. "While
the Ordinance raises numerous questions, our concern is, those affecting women
specifically. Firstly by prescribing that their must be four Muslim male adults
as eyewitnesses, it excludes the testimony of women although for Hadd.
Moreover
it is most unlikely that two same persons in any civilized society will have
sexual intercourse in a manner and in a place wherein four adult males can see
with their own eyes that act of carnal conjunction.
WOMEN
PROTECTION BILL
The
President Pervaiz Musharraf’s government in 2006 brought an amended bill under
the title of Women Protection Bill’. According to which fornication has been
made a non-cognizable offence and the magistrate can take cognizance of
offence.
One
of the major developments under this bill is that women will not go to police
station to launch FIR. Any body can directly report to magistrate and women
will not be sending to jail.
Another
major development is that if circumstantial evidence proves that Zina-bil-Jabr
was committed to her. that a women can be acquitted.
In
cases of Zina-Bil-Jabr four witnesses as which are Tuzkia-id-Shuhood give
evidence against culprit. In this case Quranic Hadd of Zina can be inflicted.
This offence has become punishable because now it falls in Tazir and punishment
of Tazir can be inflicted on culprits.
Another
problem was that false nikahnama (marriage certificate) was often produced in
Court and woman was accused of double nikahnama though truth was that it was
used to deprive a women from property rights and to insult her and her husband,
if she was married to person against the will of guardian.
For
false accusation now the punishment is five years. If a girl under 16 years of
age commits zina with consent, the punishment cannot be inflicted on her
because usually she is not sufficient mature to feel its consequences. It is
apprehended that it will encourage girl child abuse. It may be critically
examined.
RECOMMENDATIONS
The
following recommendations are based on the principle of Ijtihad (interpretation)
to meet the requirements of Hadood Law as there is difference between Hudood
Laws and Hudood-ullah.
1. Hudood-Ullah cannot be change. It
should be enforced as it is. There can be change in case of Taazir because it
has to be decided by ruler of the time. Moreover many procedural gaps can be
filled by judicial experts.
2. All Hudood Laws are not necessarily
required to be changed only controversial parts can be changed to meet with the
injunctions of Islam.
3. Usually victim of Zina-bil-Jabr complaints
for victimization. Her statements must be given weightage, because it is almost
impossible that consenting party can go to Court. If third party complaints of
Zina that party must provide proof according to Islamic principles of
testimony. Law should facilitate a woman to approach immediately soon after the
offence is committed to show her innocence. D.N.A test of accused rapist will
be helpful to prove offence.
4. For the case to be tried under Tazeer,
four witnesses are not required and punishments can still be given if offence
falls with in the purview of Tazir. A person guilty of Qazf is liable to
be punished with 30 lashes and his/her evidence will never be accepted in Court
of law. He/she is, in the words of Allah, a 'transgressor" This is area
which can be improved and changed in the Hudood Ordinance. The changed version
will lead to fewer false accusations of Zina.
5. Clear distinction may be made with regard
to the punishment of Zina and Zina-bil-jabr and circumstantial evidence may be
admitted for the punishment in Hudood cases. Overall this ordinance has proved
harmful for the women therefore one must review this after consulting Jurists and
religious scholars. The Purpose and objectives to be achieved is that the
people may not indulge in crime because of fear of Allah. The crime under the
circumstances is punishable in this world and since it is a sin also, it is
punishable in this world in the world here after.
6. Women belonging to minorities are also
affected due to these laws. For non Muslims legislation should be done
according to their own religious point of view if both parties are non Muslims.
7. Women rehabilitations and conciliation
centers must be established for those victums who are refused by blood
relations and society.
8. Medical testimony, which establishes that
sexual intercourse has taken place, can be used as proof against women if she
is unable to provide victim that she did not consented to the act.
9. Role of media cannot be ignored. It
should play effective and positive role to eliminate social evils in the
society.
10. Social legislations will be helpful to
realize evil practices.
CONCLUSION
Society
is very sensitive with regard to woman folk. Social acceptance is a big issue
whether she is acquitted or convicted. There is deterrence on the part of women
to go to
“The
current ratio of conviction tells the whole story as to how many women have
been sentenced under Hadood Law. It is police power which needs to bridled, not
huge laws on a wholes code basis, thus wasting the nations time and
money".[86]
Women
in
Domestic
violence is also concerned with women protection. But there is not effective
legislation on it.
Past
government has accepted the short comings of the Hudood laws but has refrained
from doing practical steps. The big question is who has the right to legislate
in an Islamic State? People or executive but one thing must be assured that all
laws must have the peoples will, as a sanction behind them. This means that
only a Parliament elected by the people has the right to make laws. In any
country, laws arc meant to confirm to society's needs and conditions carefully.
There
is always a need of Ijtihad to meet the requirements. This law was promulgated
on the will of a President. There was no consensus of opinions of Ulmas. So
this Islamic Penal Law required Ijtihad at time and also today.
In
the case of Qazf the punishment is severe. The contention that this punishment
was only awarded to those who accepted their guilt and asked for atonement is
the sublime essence of Islamic Justice. The Holy Prophet (SAW) and the
Khulfa-i- Rashideen were most reluctant to award this punishment unless proved
beyond a shadow of doubt, which was only possible when the person voluntarily
admitted and asked for atonement. The conditions for the charge sheet and
qualifications of witnesses are so stringent that it is next to impossible to
convict anyone. If charge is proved to be false or frivolous, the accuser risks
to be flogged himself and his testimony never to be trusted again. If the
accused is insane or intoxicated he gets the benefits of doubt with so many
things going in favour of accused and the onus of proof being on the accuser, a
good lawyer with through knowledge of Islam and Islamic Jurisprudence and not
fear Hadood Ordinance. Severe punishments prescribed in Islam are only to
instill the fear of Allah and are determents. To day Islam exist only in name,
appearance and some ritual. Hadood ordinance can only tarnish the image of
Islam.
In
the end it can be concluded that there can be no contention upon the Hadd but
Tazzir can be modified and procedure can be amended if other requirements are
fulfilled.
Apart from the
legal aspect, there is a social aspect that also needs to be addressed, for
laws alone cannot bring about the much needed change in attitude. It will be a
positive development if enlightened members of a community come out to voice
opinion on crimes against women. Such an initiative must be matched by an
on-going dialogue aimed at creating awareness on these ends and with other
important problems.
PERSONAL INJURY AND LIABILITY
OF A CARRIER
ARTICLE 17
By: Aga Zaheer Ahmed
Barrister-at-Law
Introduction:
In Pakistan Warsaw
Convention as amended at Hague in 1955 came into force through the ratifying
act of Carriage by Air (International Convention) Act, 1966[87].
Article 17 of the Warsaw Convention imposes strict liability[88]
on carrier if a passenger sustains personal injury[89]
as to:
I.
Death,
II.
Wounding, or;
III.
Any other bodily injury
In recent years many issues
have arisen regarding Article 17 in Convention Countries such as
1.
Whether
Convention provides exclusive cause of action and remedy?
2.
What amounts to
an accident within the
meaning of Art.17?
3.
Whether bodily injury encompasses conditions
such as mild post turmeric stress or depression in the absence of
physical harm?
4.
When
does convention apply? What is meant by ‘in
the course of embarking’ within
the meaning of section 17?
1.
Whether
Convention provides exclusive cause of action and remedy?
The main
significance of the Sidhu case[95]
was confirmation by the House of Lords that Art.17 provided the sole avenue of
redress for injured passengers. Passengers on a British Airways flight brought
proceedings in
“So
the stark issue which is before us in this appeal is whether a passenger who
has sustained damage in the course of international carriage by air due to the
fault of the carrier, but who has no claim against the carrier under Article 17
of the Convention is left without a remedy”
It
was accepted that they were still in the course of international carriage by
air. Although the passengers were in the terminal when they were arrested they
were still in transit to their ultimate destination. Lord Hope of Craighead, in
Sidhu[96]
discussed at some length the approach to be adopted in the construction of the
Convention. The judgement was concurred in by the other Law Lords. Using
golden/purposive rule his Lordship emphasised that the focus should be on the
Convention itself, rather than the Carriage by Air Act 1961, which implemented
it. The legislative history and travaux préparatoires[97]
may be considered to resolve ambiguities or obscurities, when the material is
publicly available and points to a definite consensus among delegates[98].
Case law from the
Lord
Hope concluded that the Convention provided the sole remedy available to the
appellants, to the exclusion of domestic law. Although at first sight it might
not seem just to deprive the parties of other remedies normally available to
them, Lord Hope justified his conclusion as follows:
"I
believe that the answer to the question raised in the present case is to be
found in the objects and structure of the Convention. The language used and the
subject-matter with which it deals demonstrate that what was sought to be
achieved was a uniform international code, which could be applied by the courts
of all the high contracting parties without reference to the rules of their own
domestic law. The Convention does not purport to deal with all matters relating
to contracts of international carriage by air. But in those areas with which it
deals--and the liability of the carrier is one of them--the code is intended to
be uniform and to be exclusive also of any resort to the rules of domestic law.
An
answer to the question, which leaves claimants without a remedy, is not at
first sight attractive. It is tempting to give way to the argument that where there is a wrong there must be a remedy.
That indeed is the foundation upon which much of our own common law has been
built up. The broad principles, which provide the foundation for the law of
delict in
Alongside these principles, however, there lies
another great principle, which is that of freedom of contract. Any person
is free, unless restrained by statute, to enter into a contract with another on
the basis that his liability in damages is excluded or limited if he is in
breach of contract. Exclusion and limitation clauses are a common feature of
commercial contracts, and contracts of carriage are no exception. It is against
that background, rather than a desire to provide remedies to enable all losses
to be compensated, that the Convention must be judged. It was not designed to
provide remedies against the carrier to enable all losses to be compensated. It
was designed instead to define those situations in which compensation was to be
available. So it set out the limits of liability and the conditions under which
claims to establish that liability, if disputed, were to be made. A balance was
struck, in the interests of certainty and uniformity."
The
ruling that the Convention provides the sole remedy, to the exclusion of rights
of action derived from domestic law, has also been supported by the US Supreme
Court[99]. However in Dr. Prof Haroon v British Airways[100]
a different approach was taken by the learned single judge of Sindh High Court:
“From the scheme of the Convention as well as the Act
of 1966, it appears that cases of breach of contract of the kind in hand are
not contemplated therein. Thus it does not mean that where a wrong done, breach
committed or injury inflicted is not within the contemplation of the Convention
and the Act of 1966, the carrier is absolved of any liability, aftermath or
consequence Applying age old legal maxim "ubi jus ibi remedium"
(where there is right[101]
there is remedy). As to "statutory wrong" the Convention provides
complete code as to rights and liabilities both of the carrier and the
passenger However, any wrong, breach or mischief not within the contemplation
of the Convention or the Act of 1966, same could be redressed either under law
governing contract, in case of Pakistan under the Contract Act. 1872 or general
law or even in appropriate cases under Tort
… The convention is silent, as regard liability of air
carrier for the breach of contract of carriage. By this, it does not mean that
air carrier is rendered absolved of all the liability in cases of breach of
contract, occurrence of any wrong ether than "statutory wrong" Such
would be anomalous position, there is no wrong without a remedy. Where any
injury is caused or loss occurs during the course of or in furtherance of
carriage by air that may not be within the contemplation of Convention, a
passenger, consignee or any other person will always have a remedy against the
carrier. Where statutory liability of air carried under the Convention
terminates; realm of general law governing contractual obligation begins or
where no remedy under general law of contract is available remedy under tort
may be extended provided a case is made out”
Justice
Mushir Alam placed reliance on the judgment in Pakistan Airlines Corporation v
Ali Raza Rizvi[102] to justify this conclusion. In this case
Pakistan Airlines Corporation’s appeal was dismissed on grounds of limitation[103]. No reference was made to the Convention[104]
or the Act of 1966[105].
At any rate, in Pakistan Airlines Corporation v Ali
Raza Rizvi, the passenger who was on transit at a foreign airport
(India) claimed to have suffered mental torture and agony, because of the fault
of clerk of the airline who had torn the relevant coupon of ticket and the
passenger was left in lurch in another High Contacting State (India). Article
17 of the Convention[106]
is applicable when a passenger is on transit[107]
and therefore the question of invoking the maxim "ubi jus ibi
remedium" did not arise in this case.
2.
What
amounts to an accident within the meaning of Art.17?
In a group action in re Deep Vein Thrombosis and Air Travel Group
Litigation[108],
airline passengers brought claims against a number of international air
carriers. They alleged injury and in some instances death following the onset
of deep vein thrombosis ("DVT") caused by air travel.
The House of Lords considered the Meaning of the word “accident” used in
Article 17:
The use in article 17 of the term "accident"
is to be contrasted with the choice of a different term in article 18. Article
18 imposes liability on carriers for damage to baggage or cargo. The use of the
term "accident" in article 17 but the term "occurrence" in
article 18 must be significant. Both terms impart the idea that something or
other has happened. However "occurrence" is entirely general in its
natural meaning. It permits no distinction to be drawn between different types
of happening. "Accident" on the other hand must have been intended to
denote an occurrence of a particular quality, an occurrence having particular
characteristics. In the many decided cases in which the issue was whether the
occurrence in question constituted an "accident" for article 17
purposes, the judges have had to ask themselves whether the occurrence
possessed the necessary quality or characteristics to qualify as an
"accident". It is evident that it was never, or should never have
been, enough for there to have been an occurrence that caused the damage. For
article 17 liability the occurrence had to have the characteristics of an
"accident".”
Thus it was concluded that Art.17, the situation does not fall within
any ordinary or extended concept of ‘accident’. An Accident for the purpose of
Art.17 requires an unexpected or unusual event or happening that was external
to the passenger.
In
Eastern Airlines Inc v Floyd[109]
in 1991, passengers on an aircraft, which lost power and narrowly avoided
having to ditch in the ocean, sued the airline for damages for mental distress.
The Supreme Court ruled that the Convention had to be construed in the light of
the law prevailing in 1929 when it had been originally signed. Since
psychiatric injury was not widely recognised by the law at that time, it did
not amount to "bodily injury" within the meaning of Art.17, and
accordingly there could be no recovery. To the contrary the Israel Supreme
Court in Daddon v Air France[110]
in 1984, in a case arising out of the 1976 hijacking of an Air France flight to
Entebbe, Uganda held that it was possible to take account of changes in civil
air transport since 1929 and also of the fact that, under Israel's domestic
law, mental damage or defect was recognised as a bodily injury.
In
Sidhu[111] the
parties accepted that psychological damage did not fall within the scope of
"bodily injury". During the course of argument in the House of Lords,
it was suggested that "bodily injury" be construed as including
psychological damage, especially if supported by medical evidence as to its
effects. Lord Hope said that the point did not arise for decision, was not
fully argued, and he preferred to express no opinion on it.
The issue did came in an Australia case of Kotsambasis
v Singapore Airlines Ltd.[112]
The plaintiff, who had been visiting her mother, boarded a flight in Athens
which would bring her home to Sydney. Shortly after takeoff, she was leaning
forward in her seat when a sudden jolt threw her backwards. Other passengers
were screaming because they could see smoke issuing from the starboard engine,
which had caught fire, and it was announced that they would be returning to the
terminal. The judge accepted evidence that this caused the plaintiff a severe
fright, and that she suffered a back injury in the terminal because of having
to carry two heavy bags. The plaintiff sued the defendant under Art.17. At
first instance, damages were awarded for psychological injuries resulting from
the fright, but not for the back injury because it had not been incurred
"in the course of embarking or disembarking". On appeal, Meagher and
Stein JJ.A., who delivered the two main judgments, agreed, “bodily injury"
in Art.17 could not include psychological injury. Meagher J.A. pointed out
that, although this term as used in English and Australian legislation had been
held to include psychological injury[113],
such interpretation could not guide the interpretation of the same phrase as
used in an international agreement. As Eastern Airlines Inc v Floyd[114] had confirmed, the proper approach was to
inquire what the term was intended to mean in 1929 when the Convention was
entered into. Stein J.A. added that reliance on Daddon v Air
The
recent authorities on the interpretation of the words "bodily injury"
in Art.17 are two cases, one Scottish and the other English, the appeals in
which were ultimately heard together by the House of Lords[116].
In the first case, King v Bristow Helicopters Ltd[117],
a passenger was on board a helicopter, however due to poor weather and failure
of engines the helicopter had to make an emergency landing. There was panic on
board and the passenger developed posttraumatic stress disorder. Because of the
stress, he suffered from a peptic ulcer disease, which developed after the
flight.
In the second case Morris v KLM Royal Dutch Airlines[118],
a passenger seated next to her physically molested a girl under the age of 16.
Consequently, after travel she was diagnosed as suffering from clinical
depression amounting to a single episode of a major depressive illness.
In King, citing Floyd[119] their lordships found that compensation
could be allowed for a passenger under Article 17 for physical manifestations
of a mental injury. A peptic ulcer disorder dissolves the issues and it is not
difficult to see that this is a kind of a bodily injury. The requirement of the
casual link to the accident was satisfied, as Mr. King was able to show that
the disorder was caused by a mental illness, which was itself caused by the
accident. Thus in the King case their lordships allowed the appeal.
Conversely, the appeal in the Morris case was not allowed. It was found
that damages for mere mental injury caused by air accidents would not be
allowed unless it was associated by a physical injury. Thus simple mental
injury as suffered by the passenger was held did not amount to bodily injury.
The Court found that there was a distinction between physical and mental
injury. Physical injury involves damage or adverse change to the structure of
the body, whereas mental illness adversely affects the well-being of the mind
without any organic change to the body. It was found that impact injuries
(referring to bodily injuries, cuts, bruises etc) and physical manifestations
of an injury (skin rashes, heart attacks) resulting from emotional distress
fell within the scope of ‘bodily injury’. Therefore it was held that recovery
for emotional distress was only limited to situations where this distress has a
physical manifestation. Recovery could not be given for distress of the
accident itself. Here the passenger did not allege any physical injury and
therefore it was found that she could not recover under the Convention.
In
Montreal Convention on International Carriage by Air, 1999, for liability of
carrier on personal injury again the phrase: ‘bodily injury’ is used[120].
By the time of contracting of the new Convention, the phrase “bodily injury”
was widely recognized to include serious psychiatric injury[121].
4.
When
does convention apply? What is
meant by in the course of embarking within the meaning of section 17?
By
Article 1 of the Warsaw Convention it ‘…applies to all international carriage of persons,
baggage or cargo performed by aircraft… ’. International carriage is defined to
mean any carriage in
which the place of departure and the place of destination are, by reason of agreement
between the parties, within the Territories of two High Contracting Parties.
The Contract of carriage is contained in or evidenced by the ticket, which
incorporates the carrier’s condition of carriage.
“Convention
applies as soon as the passenger has presented a valid ticket for travel and
the ticket has been accepted and a boarding pass issued. In other words
the carriage begins when
the passenger has successfully completed the check-in procedure. That is the
beginning of contract of carriage”[122]
In Phillips v
Air New Zealand[123] the claimant Dr. Phillips had asked for assistance from the defendant
airline in advance of her arrival at
One of
the issue for decision was whether the claimant's accident occurred "in
the course of any of the operations of embarking" within the meaning of
art. 17.
It was said obiter that as to embarkation, to make a
prima facie case that a particular claim is within Article 17 it must be
established:
(1) that the accident to the passenger is
related to a specific flight; and
(2) that it happened while the latter was
actually entering or about to enter the aircraft; or
(3) if it happened in the terminal building or
otherwise on the airport premises, that the location of the accident is a place
where the injured party was obliged to be in the process of embarkation.
While defining embarkation, Morrison J. said:
“The processes of embarkation will, I think,
include the checking-in; the passage through security and passport control and
the "departure routine", that is, going to the gate to be cleared for
embarkation and proceeding thereafter to
embark. In the most general sense,
these activities are required by the airline of its passengers. In a perfect
world, one would arrive at an airport or aerodrome, as it was when the
Convention was agreed, and go straight on board. The fact that air travel is
bedeviled by security checks and waiting time does not alter the gist of what I
think the draftsmen of the Convention intended to be covered by art. 17. If a
passenger is required to take a particular step or go to a particular place for
boarding then he or she is engaged in a process of embarkation. That means,
I think, that during the many minutes a passenger spends in the public or
private lounges or goes shopping or eats or drinks in restaurants or cafes, he
or she could not be said to be in the process of embarkation. At this stage
the passenger is waiting, more or less reluctantly. But he or she may have
already been through a process of embarkation (e.g. security, boarding card
check and passport control) and will inevitably have to go through other such
processes, such as going to the gate and getting on the aircraft. The
process of embarkation does not have to be a continuous one. In my judgment
this makes good sense of the realities of modern air travel. For some of the
time a passenger is able to do what he or she wants; for some of the time he or
she has to comply with directions and requirements imposed by the carrier. In
the light of the Sidhu[124] decision, I see no reason to give a
restrictive interpretation to art. 17.”
In Dr. Haroon v
British Airways[125]
case, Plaintiff, a professor and vary
famous philanthropist was seriously suffering from trigeminal neuralgia, a
treatment of which is not available in
The Plaintiff and his son
reported at the Check-in counter of Emirates at
The Plaintiff alleged that by
being refused accommodation and missing his medical appointment, he suffered
heavy financial loss and physical and mental agonies, humiliation and
defamation.
The Plaintiff was denied boarding
when he presented a valid ticket for travel and the ticket was rejected. Since
no boarding pass was issued, the case does not fall within the scope of the
Convention and as such the Plaintiff was eligible for domestic law remedies.
Mushir Alam J. in his judgement came to the same conclusion but on reasoning
inconsistent[126] with
HL decision in Sidhu[127]
Correct lines of reasoning, it is
submitted, were to consider first whether convention applies to the instant
case or not. If yes, it provides the exclusive remedy for the claimant’s
accident. If not (as in this case), then remedy can be sought under domestic
law.
------------------------
PERSONAL INJURY AND LIABILITY
OF A CARRIER
ARTICLE 17
By: Aga Zaheer Ahmed
Barrister-at-Law
Introduction:
In Pakistan Warsaw
Convention as amended at Hague in 1955 came into force through the ratifying
act of Carriage by Air (International Convention) Act, 1966[128].
Article 17 of the Warsaw Convention imposes strict liability[129]
on carrier if a passenger sustains personal injury[130]
as to:
IV.
Death,
V.
Wounding, or;
VI.
Any other bodily injury
In recent years many issues
have arisen regarding Article 17 in Convention Countries such as
5.
Whether
Convention provides exclusive cause of action and remedy?
6.
What amounts to
an accident within the
meaning of Art.17?
7.
Whether bodily injury encompasses conditions
such as mild post turmeric stress or depression in the absence of
physical harm?
8.
When
does convention apply? What is meant by ‘in
the course of embarking’ within
the meaning of section 17?
5.
Whether
Convention provides exclusive cause of action and remedy?
The main
significance of the Sidhu case[136]
was confirmation by the House of Lords that Art.17 provided the sole avenue of
redress for injured passengers. Passengers on a British Airways flight brought
proceedings in
“So
the stark issue which is before us in this appeal is whether a passenger who
has sustained damage in the course of international carriage by air due to the
fault of the carrier, but who has no claim against the carrier under Article 17
of the Convention is left without a remedy”
It
was accepted that they were still in the course of international carriage by
air. Although the passengers were in the terminal when they were arrested they
were still in transit to their ultimate destination. Lord Hope of Craighead, in
Sidhu[137]
discussed at some length the approach to be adopted in the construction of the
Convention. The judgement was concurred in by the other Law Lords. Using
golden/purposive rule his Lordship emphasised that the focus should be on the
Convention itself, rather than the Carriage by Air Act 1961, which implemented
it. The legislative history and travaux préparatoires[138]
may be considered to resolve ambiguities or obscurities, when the material is
publicly available and points to a definite consensus among delegates[139].
Case law from the
Lord
Hope concluded that the Convention provided the sole remedy available to the
appellants, to the exclusion of domestic law. Although at first sight it might
not seem just to deprive the parties of other remedies normally available to
them, Lord Hope justified his conclusion as follows:
"I
believe that the answer to the question raised in the present case is to be
found in the objects and structure of the Convention. The language used and the
subject-matter with which it deals demonstrate that what was sought to be
achieved was a uniform international code, which could be applied by the courts
of all the high contracting parties without reference to the rules of their own
domestic law. The Convention does not purport to deal with all matters relating
to contracts of international carriage by air. But in those areas with which it
deals--and the liability of the carrier is one of them--the code is intended to
be uniform and to be exclusive also of any resort to the rules of domestic law.
An
answer to the question, which leaves claimants without a remedy, is not at
first sight attractive. It is tempting to give way to the argument that where there is a wrong there must be a remedy.
That indeed is the foundation upon which much of our own common law has been
built up. The broad principles, which provide the foundation for the law of
delict in
Alongside these principles, however, there lies
another great principle, which is that of freedom of contract. Any person
is free, unless restrained by statute, to enter into a contract with another on
the basis that his liability in damages is excluded or limited if he is in
breach of contract. Exclusion and limitation clauses are a common feature of
commercial contracts, and contracts of carriage are no exception. It is against
that background, rather than a desire to provide remedies to enable all losses
to be compensated, that the Convention must be judged. It was not designed to
provide remedies against the carrier to enable all losses to be compensated. It
was designed instead to define those situations in which compensation was to be
available. So it set out the limits of liability and the conditions under which
claims to establish that liability, if disputed, were to be made. A balance was
struck, in the interests of certainty and uniformity."
The
ruling that the Convention provides the sole remedy, to the exclusion of rights
of action derived from domestic law, has also been supported by the US Supreme
Court[140]. However in Dr. Prof Haroon v British Airways[141]
a different approach was taken by the learned single judge of Sindh High Court:
“From the scheme of the Convention as well as the Act
of 1966, it appears that cases of breach of contract of the kind in hand are
not contemplated therein. Thus it does not mean that where a wrong done, breach
committed or injury inflicted is not within the contemplation of the Convention
and the Act of 1966, the carrier is absolved of any liability, aftermath or
consequence Applying age old legal maxim "ubi jus ibi remedium"
(where there is right[142]
there is remedy). As to "statutory wrong" the Convention provides
complete code as to rights and liabilities both of the carrier and the
passenger However, any wrong, breach or mischief not within the contemplation
of the Convention or the Act of 1966, same could be redressed either under law
governing contract, in case of Pakistan under the Contract Act. 1872 or general
law or even in appropriate cases under Tort
… The convention is silent, as regard liability of air
carrier for the breach of contract of carriage. By this, it does not mean that
air carrier is rendered absolved of all the liability in cases of breach of
contract, occurrence of any wrong ether than "statutory wrong" Such
would be anomalous position, there is no wrong without a remedy. Where any
injury is caused or loss occurs during the course of or in furtherance of
carriage by air that may not be within the contemplation of Convention, a
passenger, consignee or any other person will always have a remedy against the
carrier. Where statutory liability of air carried under the Convention
terminates; realm of general law governing contractual obligation begins or
where no remedy under general law of contract is available remedy under tort
may be extended provided a case is made out”
Justice
Mushir Alam placed reliance on the judgment in Pakistan Airlines Corporation v
Ali Raza Rizvi[143] to justify this conclusion. In this case
Pakistan Airlines Corporation’s appeal was dismissed on grounds of limitation[144]. No reference was made to the Convention[145]
or the Act of 1966[146].
At any rate, in Pakistan Airlines Corporation v Ali
Raza Rizvi, the passenger who was on transit at a foreign airport
(India) claimed to have suffered mental torture and agony, because of the fault
of clerk of the airline who had torn the relevant coupon of ticket and the
passenger was left in lurch in another High Contacting State (India). Article
17 of the Convention[147]
is applicable when a passenger is on transit[148]
and therefore the question of invoking the maxim "ubi jus ibi
remedium" did not arise in this case.
6.
What
amounts to an accident within the meaning of Art.17?
In a group action in re Deep Vein Thrombosis and Air Travel Group
Litigation[149],
airline passengers brought claims against a number of international air
carriers. They alleged injury and in some instances death following the onset
of deep vein thrombosis ("DVT") caused by air travel.
The House of Lords considered the Meaning of the word “accident” used in
Article 17:
The use in article 17 of the term "accident"
is to be contrasted with the choice of a different term in article 18. Article
18 imposes liability on carriers for damage to baggage or cargo. The use of the
term "accident" in article 17 but the term "occurrence" in
article 18 must be significant. Both terms impart the idea that something or
other has happened. However "occurrence" is entirely general in its
natural meaning. It permits no distinction to be drawn between different types
of happening. "Accident" on the other hand must have been intended to
denote an occurrence of a particular quality, an occurrence having particular
characteristics. In the many decided cases in which the issue was whether the
occurrence in question constituted an "accident" for article 17
purposes, the judges have had to ask themselves whether the occurrence
possessed the necessary quality or characteristics to qualify as an
"accident". It is evident that it was never, or should never have
been, enough for there to have been an occurrence that caused the damage. For
article 17 liability the occurrence had to have the characteristics of an
"accident".”
Thus it was concluded that Art.17, the situation does not fall within
any ordinary or extended concept of ‘accident’. An Accident for the purpose of
Art.17 requires an unexpected or unusual event or happening that was external
to the passenger.
In
Eastern Airlines Inc v Floyd[150]
in 1991, passengers on an aircraft, which lost power and narrowly avoided
having to ditch in the ocean, sued the airline for damages for mental distress.
The Supreme Court ruled that the Convention had to be construed in the light of
the law prevailing in 1929 when it had been originally signed. Since
psychiatric injury was not widely recognised by the law at that time, it did
not amount to "bodily injury" within the meaning of Art.17, and
accordingly there could be no recovery. To the contrary the Israel Supreme
Court in Daddon v Air France[151]
in 1984, in a case arising out of the 1976 hijacking of an Air France flight to
Entebbe, Uganda held that it was possible to take account of changes in civil
air transport since 1929 and also of the fact that, under Israel's domestic
law, mental damage or defect was recognised as a bodily injury.
In
Sidhu[152] the
parties accepted that psychological damage did not fall within the scope of
"bodily injury". During the course of argument in the House of Lords,
it was suggested that "bodily injury" be construed as including
psychological damage, especially if supported by medical evidence as to its
effects. Lord Hope said that the point did not arise for decision, was not
fully argued, and he preferred to express no opinion on it.
The issue did came in an Australia case of Kotsambasis
v Singapore Airlines Ltd.[153]
The plaintiff, who had been visiting her mother, boarded a flight in Athens
which would bring her home to Sydney. Shortly after takeoff, she was leaning
forward in her seat when a sudden jolt threw her backwards. Other passengers
were screaming because they could see smoke issuing from the starboard engine,
which had caught fire, and it was announced that they would be returning to the
terminal. The judge accepted evidence that this caused the plaintiff a severe
fright, and that she suffered a back injury in the terminal because of having
to carry two heavy bags. The plaintiff sued the defendant under Art.17. At
first instance, damages were awarded for psychological injuries resulting from
the fright, but not for the back injury because it had not been incurred
"in the course of embarking or disembarking". On appeal, Meagher and
Stein JJ.A., who delivered the two main judgments, agreed, “bodily injury"
in Art.17 could not include psychological injury. Meagher J.A. pointed out
that, although this term as used in English and Australian legislation had been
held to include psychological injury[154],
such interpretation could not guide the interpretation of the same phrase as
used in an international agreement. As Eastern Airlines Inc v Floyd[155] had confirmed, the proper approach was to
inquire what the term was intended to mean in 1929 when the Convention was
entered into. Stein J.A. added that reliance on Daddon v Air
The
recent authorities on the interpretation of the words "bodily injury"
in Art.17 are two cases, one Scottish and the other English, the appeals in
which were ultimately heard together by the House of Lords[157].
In the first case, King v Bristow Helicopters Ltd[158],
a passenger was on board a helicopter, however due to poor weather and failure
of engines the helicopter had to make an emergency landing. There was panic on
board and the passenger developed posttraumatic stress disorder. Because of the
stress, he suffered from a peptic ulcer disease, which developed after the
flight.
In the second case Morris v KLM Royal Dutch Airlines[159],
a passenger seated next to her physically molested a girl under the age of 16.
Consequently, after travel she was diagnosed as suffering from clinical
depression amounting to a single episode of a major depressive illness.
In King, citing Floyd[160] their lordships found that compensation
could be allowed for a passenger under Article 17 for physical manifestations
of a mental injury. A peptic ulcer disorder dissolves the issues and it is not
difficult to see that this is a kind of a bodily injury. The requirement of the
casual link to the accident was satisfied, as Mr. King was able to show that
the disorder was caused by a mental illness, which was itself caused by the
accident. Thus in the King case their lordships allowed the appeal.
Conversely, the appeal in the Morris case was not allowed. It was found
that damages for mere mental injury caused by air accidents would not be
allowed unless it was associated by a physical injury. Thus simple mental
injury as suffered by the passenger was held did not amount to bodily injury.
The Court found that there was a distinction between physical and mental
injury. Physical injury involves damage or adverse change to the structure of
the body, whereas mental illness adversely affects the well-being of the mind
without any organic change to the body. It was found that impact injuries
(referring to bodily injuries, cuts, bruises etc) and physical manifestations
of an injury (skin rashes, heart attacks) resulting from emotional distress
fell within the scope of ‘bodily injury’. Therefore it was held that recovery
for emotional distress was only limited to situations where this distress has a
physical manifestation. Recovery could not be given for distress of the
accident itself. Here the passenger did not allege any physical injury and
therefore it was found that she could not recover under the Convention.
In
Montreal Convention on International Carriage by Air, 1999, for liability of
carrier on personal injury again the phrase: ‘bodily injury’ is used[161].
By the time of contracting of the new Convention, the phrase “bodily injury”
was widely recognized to include serious psychiatric injury[162].
8.
When
does convention apply? What is
meant by in the course of embarking within the meaning of section 17?
By
Article 1 of the Warsaw Convention it ‘…applies to all international carriage of persons,
baggage or cargo performed by aircraft… ’. International carriage is defined to
mean any carriage in
which the place of departure and the place of destination are, by reason of agreement
between the parties, within the Territories of two High Contracting Parties.
The Contract of carriage is contained in or evidenced by the ticket, which
incorporates the carrier’s condition of carriage.
“Convention
applies as soon as the passenger has presented a valid ticket for travel and
the ticket has been accepted and a boarding pass issued. In other words
the carriage begins when
the passenger has successfully completed the check-in procedure. That is the
beginning of contract of carriage”[163]
In Phillips v
Air New Zealand[164] the claimant Dr. Phillips had asked for assistance from the defendant
airline in advance of her arrival at
One of
the issue for decision was whether the claimant's accident occurred "in
the course of any of the operations of embarking" within the meaning of
art. 17.
It was said obiter that as to embarkation, to make a
prima facie case that a particular claim is within Article 17 it must be
established:
(1) that the accident to the passenger is
related to a specific flight; and
(2) that it happened while the latter was
actually entering or about to enter the aircraft; or
(3) if it happened in the terminal building or
otherwise on the airport premises, that the location of the accident is a place
where the injured party was obliged to be in the process of embarkation.
While defining embarkation, Morrison J. said:
“The processes of embarkation will, I think,
include the checking-in; the passage through security and passport control and
the "departure routine", that is, going to the gate to be cleared for
embarkation and proceeding thereafter to embark. In the most general sense, these activities are required by the airline
of its passengers. In a perfect world, one would arrive at an airport or
aerodrome, as it was when the Convention was agreed, and go straight on board.
The fact that air travel is bedeviled by security checks and waiting time does
not alter the gist of what I think the draftsmen of the Convention intended to
be covered by art. 17. If a passenger is required to take a particular step or
go to a particular place for boarding then he or she is engaged in a process of
embarkation. That means, I think, that during the many minutes a passenger
spends in the public or private lounges or goes shopping or eats or drinks in
restaurants or cafes, he or she could not be said to be in the process of
embarkation. At this stage the passenger is waiting, more or less
reluctantly. But he or she may have already been through a process of
embarkation (e.g. security, boarding card check and passport control) and will
inevitably have to go through other such processes, such as going to the gate
and getting on the aircraft. The process of embarkation does not have to be
a continuous one. In my judgment this makes good sense of the realities of
modern air travel. For some of the time a passenger is able to do what he or
she wants; for some of the time he or she has to comply with directions and
requirements imposed by the carrier. In the light of the Sidhu[165] decision, I see no reason to give a
restrictive interpretation to art. 17.”
In Dr. Haroon v
British Airways[166]
case, Plaintiff, a professor and vary
famous philanthropist was seriously suffering from trigeminal neuralgia, a
treatment of which is not available in
The Plaintiff and his son
reported at the Check-in counter of Emirates at
The Plaintiff alleged that by
being refused accommodation and missing his medical appointment, he suffered
heavy financial loss and physical and mental agonies, humiliation and
defamation.
The Plaintiff was denied boarding
when he presented a valid ticket for travel and the ticket was rejected. Since
no boarding pass was issued, the case does not fall within the scope of the
Convention and as such the Plaintiff was eligible for domestic law remedies.
Mushir Alam J. in his judgement came to the same conclusion but on reasoning
inconsistent[167] with
HL decision in Sidhu[168]
Correct lines of reasoning, it is
submitted, were to consider first whether convention applies to the instant
case or not. If yes, it provides the exclusive remedy for the claimant’s
accident. If not (as in this case), then remedy can be sought under domestic
law.
------------------------
FLAWS IN
By
CH. MUHAMMAD BASHIR
Advocate,
(Ex. Member Punjab Bar Council).
The said Ordinance, in relation to creation
of future tenancies, has made the following Provisions:-
Section 5(1) provides that a Landlord cannot
let out a premise to a tenant except by a Tenancy Agreement.
Sub-section (2) obliges a Landlord to present
the Tenancy Agreement before Rent Registrar.
Sub-section (3) provides that the Rent
Registrar shall enter the particulars of the tenancy in a Registrar, affix his
official seal on the tenancy agreement, retain a copy thereof and return
original tenancy agreement to the landlord.
Sub-section (4) provides that the entry of
particulars of the tenancy shall not absolve the landlord or the Tenant of
their liability to register the tenancy agreement under the law relating to
registration of documents.
Sub-section (5) provides that the tenancy
agreement entered in the office of a Rent Registrar or a certified copy thereof
shall be a proof of the relationship of landlord and tenant.
Section 6 provides that tenancy agreement
shall contain, as far as possible, the following particulars:-
(a) particulars
of the landlord and the tenant;
(b) description
of the premises;
(c) period
of tenancy;
(d) rate of rent, rate of enhancement, due date
and mode of payment of rent;
(e) particulars of the bank account of the
landlord if the rent is to be paid through a bank.
(f) the
purpose for which the premises is let out; and
(g) amount
of advance rent, security of Pagri, if any,
Section 7 obliges a Tenant to pay rent to the Landlord in the mode
and by the date mentioned in the Tenancy Agreement.
In case the date of payment is not mentioned
the tenant is obliged to make payment by the 10th of the following month.
In case of mode of payment is not mentioned
the rent may be paid through money order or deposit in the Bank Account of the
Landlord.
As to the bringing of the existing tenancies in conformity with
the above requirements of Tenancy Agreements
Section 8 provides that existing tenancies
shall, as soon as possible, but not later than 2 years from the date of coming
into force of the Ordinance, be brought in conformity with the Provisions of
the Ordinance.
Section 9 provides that, if tenancy does not
conform to the Provisions of the Ordinance, the Rent Tribunal shall not
entertain an application under the Ordinance--
(a) on behalf of the Tenant, unless he deposits
a fine equivalent to 5% of the annual value of the rent of the premises in the
Government Treasury.
(b) On behalf of the Landlord, unless he
deposits a fine equivalent to 10% of the annual value of the rent of the
premises in the Government Treasury.
The said lay out of the Provisions brings out the following flaws
in the Ordinance.
(1) It Lacks
positivity and command.
The
accumulative effect of Provisions contained in Sections 5 to 7, on the one
hand, is that after the coming into force of the Ordinance no tenancy can be
created except by means of Agreement, providing for the particulars specified
in Section 6, which apart from being registered under the Registration Act
1908, will be entered in the office of Rent Registrar, while, on the other, it
permits the tenancies, not clothed in tenancy Agreement under said Ordinance,
to continue to exist or operate, by accommodating them as a basis for making of
applications before Rent Tribunal, on payment of fine at the rate of 5% of
annual rental value in case the application is filed by tenant, and 10%, in
case Landlord files application. So this Ordinance has provided a
self-defeating loophole. In this way the said law lacks the essential
perquisite of positiveness and command of a good law.
(2) It does not provide a definite and
certain base for determination of annual rental value for levying fine under
Section 9.
In case the tenancy is oral and the applications on behalf of
Tenant and Landlord are entertainable on payment of respective fines by them
and the parties are not agreed on the rate of rent, then the Rent Tribunal,
before deciding the application on merits, will be required to find out the
actual rate of rent, after reception of evidence, to settle the amount of fine.
Such a situation is sure to cause inordinate delay in the disposal of
application.
(3) No mechanism has been provided to
squeeze the existing tenancies into tenancy agreements in conformity with the
Ordinance.
Section 8 postulates that existing tenancies
are to be brought in conformity with the provisions of the Ordinance.
There may be more than one reason for not
converting the existing tenancies into tenancy agreements under the Ordinance.
FIRSTLY, a dispute might arise as
to what are terms of the existing tenancy. So long as a finding is not reached
on this point, no question of condensing it into an agreement under the
Ordinance can arise;
SECONDLY; a tenant will not find
it beneficial to limit his tenancy by signing an agreement;
THIRDLY; A Landlord will not like
to be exposed to burden of income and property taxes by certifying his income
in the shape of agreement;
FOURTHLY; Both the parties will
avoid incurring of Registration expenses.
So the existing tenancies are more likely to
remain operative in future in spite of elapse of grace period of two years
allowed under Section 8.
(4) No need for entry of tenancy
agreements, already registered under the Registration Act 1908, with the Rent
Registrar.
When a tenancy, for a period for
one year or more, is registered under the Registration Act 1908, it will be
sheer overlapping or duplication to require it to be entered in the office of
Rent Registrar. A Registered Tenancy also carries with it presumption of
genuineness and validity.
---------------------
By:
PROF. ZILL-I-ATIF
Director & Head Faculty of Law
GC University
The
dynamic concept of Khula has touched new heights of controversy through the
recently proposed recommendations made by Council of Islamic Ideology in its
recent meeting.1 The Council has recommended a law under which it
will be mandatory for a husband to divorce his wife within 90 days if she
submits a written demand for divorce. This is a remarkable step forward in the
dynamics of Khula.
The
law in the country was probably moving towards this end but the Council of
Islamic Ideology has made a sudden leap forward. 2 This has sent
waves throughout the country, plunging the matter into greater controversy the
clerics rising in protest and certain sections of civil society applauding in
disbelief.
In the statement made by the
Council wherein the recommendations were made, the Council reviewed the wife’s
right to divorce in the following words.3
“In usual circumstances, it
is expected that a
decent husband will not
refuse his wife’s request
(for dissolution of
marriage) in a situation
where no reasonable
possibility of reconciliation
exists. However, if the
husband does not accept
the request, what is the
woman to do? The shariah
does not answer this
question; instead, as with
many other matters related
to life, it leaves this
matter also to our discretion.”
Such
a viewpoint of the Council has invoked criticism that the matter is settled law
in Shariah and it does not allow an independent unilateral right of divorce to
the wife. Another strain of thought states that the substantial law has been
decided by Islamic law while procedural law may have been left to “discretion”
or to ijtehad. The Council accepted the position that the prevalent procedure
has been for the wife to resort to the courts for final settlement. The Council
asks a pertinent question does going to the court enhance the opportunity of
reconciliation or secure the sanctity of marriage? If not, then it should be
discouraged that marriages end up inside the courts. The Council states:
“Since the Prophet’s time
(PBUH) the procedure
that has been adopted for
this purpose is that the
woman then approaches the
court. In our times,
this step is often fraught
with innumerable difficulties
for the woman. One
suggestion to resolve this
problem is that the man be
asked to delegate
his authority in divorce to
the woman. However,
such demand is again not
easy to make in
our society, especially on
the occasion
of marriage. Furthermore,
such stipulation
also negates the spirit and
the wisdom in not
giving a woman the right to divorce her
husband.”
The
Council believed that sending the woman to the court was tantamount to
depriving her of the right to seek dissolution of marriage. It was emphasized
that “Khula” was a right that belonged to the wife as “Talaq” was the right
that belonged exclusively to the husband. The council then recommended (it
being a recommendatory and not a law-enacting body):
“Therefore, in our opinion,
a law should be
enacted at the level of the
state that, after
a woman’s request for
termination of marriage,
if the husband refuses to
divorce her in the next
90 days, the marriage shall stand dissolved.”
Khula
dissolution of marriage at the instance of the woman has another very important
side. That is the return of gifts, benefits, matrimonial rewards in lieu of
Khula. The principle of “forfeiture” is integral to the doctrine of khula. The
doctrine of Khula has an integral and a reciprocal duty for the woman of
forfeiture of gifts and remaining dower. The Council has made the
recommendation (controversy to established law?):
“If the husband gives his
wife assets and
property and demands them
back at the
time of divorce, the wife
will have to return
the assets except for dower
and maintenance
or else approach a court of
law for the resolution
of the conflict (of return of
assets/Valuables).”
Here again is an interesting deviation from the established
position of law. The wife would clearly be entitled to deferred dower and
maintenance.
Now
the question is whether Council of Islamic ideology can change the existing
law? What is its legal status or the status of its dictates? Council of Islamic
Ideology is a Constitutional creation 4 and out of twelve parts of
the Constitution of 1973, one whole part, Part IX has been allocated to the
creation, functions and powers of the Council and is titled “The Islamic
Provisions”. The Council was initially established as Advisory Council of
Islamic ideology on August 1, 1962 5 and re-designated as Council of
Islamic Ideology in the current Constitution of Pakistan. The object for the
establishment of the Council is to bring “all existing laws in conformity with
the injunctions of the Holy Quran and Sunnah”.6
The
Constitution states that the Council if it deems a law to be a deviation from
the primary Injunctions of Islam, shall bring such deviation to light and
“recommend” to the President or Governor 7 such measures as would
bring the law in conformity with Quran and Sunnah. The Council therefore does
not have the power of enactment but only recommendation. It is thus that the
federal law ministry has asked the Council to prepare a draft on the basis of
these recommendations. The finialised Bill would then be introduced and debated
in the Parliament. As the Council is supposed to make its recommendations on
the basis of Injunctions of Holy Quran and Sunnah, the Council has relied on
Surah Nisa for its expositions.8
The
fact that the proposals by the Council of Islamic Ideology still need to be
tested by the wisdom of Parliament has inspired the opposing views to contest
their case with great vigor. There are
clerics who have claimed this expanded right of divorce for the woman to be
outrightly unIslamic. Some have gone a step further and attacked the very
existence and the wisdom of the Council itself, claiming its members to be
political appointees rather than true Islamic Ulemas.9
Certain
sections of the civil society 10 have hailed the decision of the
Council. A very intriguing view has been expressed in this regard. It has been
contended that a speedier and an expedient implementation of the Council’s
decision would be to amend section 18 of the Nikahnama. The section asks the
husband whether he is giving his wife the right to divorce. 11 This
agreement from the groom is obtained at the time of marriage. Practically, in
more than 95 per cent of the cases section 18 of the Nikahnama is struck out at
the time of marriage and rendered not applicable. It has been suggested that
the application of section 18 be made mandatory. This would save the Parliament
from long and laborious debates and controversial legislation.
The
right granted under Section 18 of the Nikahnama refers to section 8 of Muslim
Family Law Ordinance .12 When
invoked, it allows a woman to divorce her husband using section 7 of the Muslim
Family Law Ordinance 1961, which defines the procedure for divorce .13
Significantly, it allows a woman to institute divorce proceedings while
retaining her rights over the dower amount, or haq mahr, agreed upon by the
contracting parties and recorded on the Nikahnama.
There is a significant difference be